Slaughter v. Smither

• Decision Date: 15 June 1899
• Citation: 33 S.E. 544,97 Va. 202
• Parties: SLAUGHTER. v. SMITHER.
• Court: Virginia Supreme Court

33 S.E. 544

97 Va. 202

SLAUGHTER.

v.SMITHER.

Supreme Court of Appeals of Virginia.

June 15, 1899.

PAROL EVIDENCE—CONTRADICTING WRITINGS —COLLATERAL PAROL AGREEMENT.

1. Where a person agreed in writing to take charge of a business for the owner, and pay over the net proceeds until they amounted to a certain sum, when the owner was to transfer the business to him, parol evidence is inadmissible to show that, as part of the consideration, the owner orally agreed not to engage in a similar business in the city, in the absence of fraud or mistake.

2. A hill to enjoin the carrying on of a business in a certain city alleged a sale of a similar business by defendant to complainant by a written agreement, which was complete in all its terms, and that, as an additional consideration for the purchase, defendant had orally agreed not to engage in a like business in the city, and that he was conducting the business sought to be enjoined in violation of such agreement. Plaintiff testified that, when the agreement of sale was executed, he insisted that defendant's alleged promise not to engage in a like business in the city should be inserted in the contract, but that defendant declined; whereupon complainant signed the contract, relying on defendant's verbal promise. Held, that the alleged oral agreement was a part of the consideration for the sale, and not an independent collateral agreement, susceptible of being established by parol.

Appeal from chancery court of Richmond.

Bill by W. G. Smither against P. M. Slaughter for injunction. Decree for complainant, and defendant appeals. Reversed.

H. L. Watson and Meredith & Cocke, for appellant.

S. S. P. Patteson, for appellee.

HARRISON, J. The bill in this case alleges that on the 29th day of October, 1894, the appellee entered into a contract with appellant for the purchase of the drug business carried on by appellant in a leased house on Venable street, in the city of Richmond, at No. 2523. The following copy of the alleged contract is filed with the bill, to be read as a part thereof:

"Exhibit A.

"Richmond, Oct. 29, 1894.

"I hereby agree to take charge of Mr. P. M. Slaughter's drug store, and to run it for him, as best I can, giving my close personal attention, and doing everything I can to retain all his present trade, to get all the new trade I can, just as if I owned the business.

"I agree to draw only $50 a month, not to buy any goods, but to turn all my orders over to Mr. Owens, of the Owens & Minor Drug Co., who will do all the buying for the business, and who will pay all the bills and salaries, who will place to my credit on the bond held by him all the surplus after paying all expenses and for all purchases.

"I will continue to keep a strict and accurate account of all sales and to conduct the business as Mr. Slaughter has been doing. I will turn all the money taken in each week to Mr. Owens, taking a receipt for it, and at the end of each month have a settlement, as above indicated.

"When I have paid in all the sum of $3,500, and all interest at 6 per cent. on balance due on it, I am to receive a clear bill of sale for the business. It is clearly understood that the business is to remain Mr. Slaughter's until all the $3,500 and interest is paid.

"[Signed] W. G. Smither."

After setting up the foregoing written contract, the bill further alleges, as an additional consideration, not mentioned in the written memorial, moving appellee to make the purchase, that appellant then agreed with appellee to remove from the city, and discontinue the drug business, and especially in that neighborhood; that notwithstanding this promise and agreement, appellant had since the execution of the contract reopened a drug business in the neighborhood, thereby entailing great loss and damage upon appellee; that, but for the false and fraudulent representations of appellant that he would remove from the city and discontinue the drug business, appellee would not have entered into the contract of October 29, 1894.

The prayer of the bill, as finally amended, is that the contract dated October 29; 1894, may be specifically enforced by appellant being required to discontinue business as a druggist in said neighborhood on Church Hill, in the city of Richmond, and that proper damages or compensation for breach of the contract of sale and purchase may be awarded appellee.

A demurrer and answer to this bill was filed by appellant admitting the terms of the alleged conditional sale to be those set forth in the written contract of October 29, 1894, a copy of which is filed with the bill, and in a cross bill subsequently filed by appellant specific performance of the written contract is, among other things, prayed for. The answer emphatically denies that appellant ever at any time, verbally or in writing, promised or agreed with appellee to remove from the city of Richmond or to discontinue the drug business.

A number of errors have been assigned and discussed, but, in our view of the case, it is only necessary to consider that assignment of error which relates to the action of the lower court in admitting evidence in support of the alleged parol agreement of appellant to discontinue the drug business.

The general principle that evidence of a contemporaneous parol agreement is not admissible to vary or contradict the terms of a valid written instrument, except in cases of fraud or mistake, is so familiar and well established that citation of authority in its support would seem to be superfluous. It is a principle founded in wisdom, and cannot be too carefully guarded. Upon its enforcement, the certainty and sanctity of written contracts depend, and its violation would be destructive of the most solemn...