Cleghorn v. Shields ( 1927 )

Gilbert, J.

1. There is no conflict in the evidence on the controlling ,issues, and that introduced, with all reasonable deductions or inferences therefrom, demanded a verdict for the plaintiff, as directed by the court.

(a) The written agreement to abide by the survey prescribing the manner in which it was to be done was proved without contradiction.

(b) The defendant’s answer alleged that “the plaintiff overreached, deceived, and misled” the defendant into signing the written agreement, but the evidence introduced to support the allegation was insufficient to require that issue to be submitted to the jury.

2. Parol evidence as to the terms of the agreement, and as to statements of the defendant made previously to the execution of the paper, is ineffectual to vary the terms of the written instrument, even though admitted without objection. Civil Code (1910), §§ 4268, 5788.

Judgment affirmed.

All the Justices concur, except Russell, G. J., amd Atkinson, J., who dissent. B. M. W. Glenn and Norman Shattuclc, for plaintiff in error. Rosser & Shaw, contra.