Hightower v. Henry , 85 Miss. 476 ( 1904 )

Whitfield, C. J.,

delivered the opinion of the court.'

The appellee executed the following note to the appellants: “Mound City, Miss., May 1st, 1901. On or before November 15th, next after date, I promise to pay to the order of High-tower & Oassity $360, rent for ninety acres of land at four dollars per acre, of Laban plantation, for the year 1901. Yalue received. W. E. Henry.” This is not simply a promissory note, but a contract embracing all the terms of a contract between the parties. On the trial in the court below the appellee offered testimony to show that early in the year appellants agreed verbally that they would repair the fences, and that appellee would not have made the contract unless Hightower & Oassity had agreed to put a good fence around the place to keep out the cattle. This testimony the court below, over the objection of the appellants, admitted.' A majority of the court are of the opinion that this testimony was clearly incompetent. It would be adding to the terms of a written contract a new term by parol. A majority of the court are also of the opinion that the testimony shows that part of the damage sustained by the depredations of cattle was due to the negligence of appellee himself in leaving down gaps in his fence, and that the testimony fails to show what part of the damage was due to the negligence of appellants, and that, on this state of the evidence, the court might well have given a peremptory instruction for the plaintiffs.

The result, in either view, is that the judgment must be, and is hereby, reversed, and the case remanded for a new trial.