Edrington v. Stephens

^* Corpus Juris-Cyc. References: Evidence, 22CJ, p. 1070, n. 34; p. 1075, n. 50, 51; p. 1089, n. 31; p. 1098, n. 96; p. 1121, n. 98; p. 1122, n. 1; p. 1123, n. 4; p. 1248, n. 29; p. 1255, n. 53; p. 1259, n. 88; p. 1274, n. 85; p. 1275, n. 89; 23CJ, p. 40, n. 53; Trial, 38Cyc, p. 1429, n. 92. On admissibility of parol evidence to add to, alter or vary the terms of a written contract, see annotation in 17 A.L.R. 272; 10 R.C.L. 1036; 2 R.C.L. Supp. 1143; 4 R.C.L. Supp. 687; 5 R.C.L. Supp. 584; 6 R.C.L. Supp. 635. This suit was instituted in the chancery court of Union county by R.F. Tate and Simpson Tate to recover on two promissory notes executed by the defendant, Edgar J. Stephens, for a part of the purchase money of certain land, and to enforce a vendor's lien on the land. While the case was pending, Simpson Tate died, and the executors of his will were substituted as complainants. The defendant, Stephens, filed an answer and cross-bill in which he claimed as a set-off against the notes sued on the sum of one thousand five hundred twenty-nine dollars and seven cents, alleged to have been expended by him in repairing a cotton gin located on the land purchased by him. During the pendency of the suit, certain payments were made on the notes, and, upon the final hearing, the chancellor sustained the cross-bill, and entered a decree in favor of the complainants for the balance found to be due after allowing the set-off claimed by the defendant, and from this decree the complainants prosecuted this appeal.

The record discloses that R.F. Tate and Simpson Tate executed and delivered to the appellee a warranty deed conveying a tract of land in Union county, Miss., on which was located a cotton gin plant. A vendor's lien was expressly reserved in the deed to secure the payment of the balance of the purchase price of said property, which was evidenced by a series of notes, of which the two notes sued on were a part. To the bill of complaint the appellee filed an answer and cross-bill, which, as finally amended, admitted the purchase of the property for the price stated in the original bill, and also the execution of the notes as alleged, but claimed an offset on account of necessary repairs to the cotton gin located on the premises, and set forth the negotiations and agreement in reference to such repairs in the following language:

"Further answering, the defendant says that there was located on said lot a cotton gin, which was included in said purchase; that said gin was considerably out of order, and a large amount of work was required to put said machinery in condition to be operated; that, when Robert F. Tate, one of the complainants, a partner of Simpson Tate in the ownership of said property, came to see defendant about closing the deal for said property, his attention was called to the condition of said property, and that same was not in as good condition as had been represented by complainants, which was to be sold in good running order; that said R.F. Tate, complainant, acting for himself, and being duly authorized and empowered to act for Simpson Tate, his partner, and for the partnership, talked the matter over with the defendant before the trade was consummated, and tried to reach an agreement as to the cost of said repairs, but were unable to agree on an amount; that finally it was agreed between R.F. Tate, acting for himself, and for Simpson Tate, and being duly authorized so to act, and the defendant, that the defendant should make all necessary repairs in order to place the said machinery in good running order as agreed upon, and that the complainants would pay for same; that this agreement was made between the complainants and the defendant at the time of the execution of the deed and notes described in the original bill, and defendant further alleges that, immediately after the execution of the deed and notes, the said R.F. Tate, acting for himself and for complainant, Simpson Tate, inspected the said property in company with defendant, and that, subsequent to the execution of the deed and notes, the said R.F. Tate, acting for himself and for Simpson Tate, and being duly authorized so to act, for and in consideration of the fact that they had represented the property to be in good running order, and, having inspected said property, found their representations were untrue, and that said machinery was greatly out of repair, as represented by cross-complainant prior to closing of said deal, and, in order to make good their representations, and that the consideration in said notes might not fail, agreed with the defendant that defendant should do all necessary repairing on said property, and that complainants would pay for same; that the said agreement, entered into at the time of the consummation of the deal and the subsequent agreement above set forth was a collateral and independent agreement between complainants and defendant, was entered into by defendants in good faith; and that, in pursuance of said agreement, the defendant had the necessary repairs made on said machinery, which amount has not been paid by complainants, although they have been often requested to pay same."

In the negotiations leading up to the sale of the property and the final execution of the deed and notes, the complainants were represented throughout by R.F. Tate, and in his testimony he emphatically denied that he made any representations with reference to the condition of the gin, or that he made any offer to make an allowance for repairs, or any promise to pay for repairs, or credit the same on the notes.

The defendant and his witnesses testified that prior to, and at the time of, the execution of the deed and notes described in the bill of complaint, it was agreed by and between R.F. Tate, representing the complainants, and the defendant, that the defendant should make all necessary repairs to place the machinery of the ginning plant in good running order, and that the complainants would pay for the same, and, further, that immediately after the execution of said deed and notes the said Tate and the defendants inspected the said property, and the said Tate again agreed with the defendant that he (the defendant) should make all necessary repairs of the property, and that complainants would pay for same; this testimony in reference to the agreement between the parties being substantially the same as the averments of the answer and cross-bill in reference thereto, hereinbefore quoted. The most of this testimony in reference to this oral agreement was admitted without objection, but the defendant offered an itemized statement of the amount alleged to have been expended by him for repairs, together with certain invoices to support the same, and these were admitted over the objections of complainants.

This record presents no element or question of fraud, misrepresentation, or mistake as to the condition of the property purchased, since the appellee testified that, prior to the execution of the contract of sale, he had two experienced ginners inspect the property, and that he was fully informed as to its bad condition before he signed the notes and accepted the deed.

We think the testimony offered by appellee to establish the oral agreement in reference to repairing the machinery of the gin plant clearly tended to add to or to vary the terms of the written contract as embodied in the deed of conveyance and notes, and that it was not permissible to so alter, vary, or add to the written contract. It is true that a written contract may be modified or changed by a subsequent parol agreement which is supported by an additional consideration, and it is also true that the testimony offered in this case tends to prove an oral agreement in reference to repairs, which was made immediately before the signing of the written contract, and repeated immediately, or a few minutes thereafter. Conceding for the purpose of this decision that the last oral agreement testified about was not so closely connected with the execution of the written contract as to be contemporaneous therewith, still the appellee cannot avail thereof as a defense, for the reason that it is not supported by any additional consideration.

Certain portions of the testimony tending to establish the oral agreement to repair and the set-off pleaded were admitted without objection on the part of appellants, but this is of no consequence in deciding the question now presented, for the reason that, in the case of Kendrick v.Robertson, 145 Miss. 585, 111 So. 99, this court held that the rule that the terms of a written contract or conveyance cannot be varied or added to by parol evidence is not merely a rule of evidence, but is one of substantive law, and, in measuring the rights of the parties to a written contract or conveyance which, on its face, is unambiguous and expresses an agreement complete in all its essential terms, the writing will control.

The decree of the court below allowing the set-off of one thousand five hundred twenty-nine dollars and seven cents will therefore be reversed, and a decree will be entered for the balance due on the notes sued on.

Reversed and decree here.