City of Orangeburg v. BUFORD

Baker, Chief Justice,

(concurring).

The evidence which the trial Judge excluded, upon objection by respondent, did not vary or contradict the terms of the lease, but was in explanation of “approximately 25 feet.” This testimony should have been admitted as it was competent to show the most advantageous and profitable use of appellant’s land.

The facts of this case do not justify or call for the application of the general rule as contained in those cases cited by Mr. Justice Oxner, to wit, Ex parte Moore, 161 S. C. 107, 159 S. E. 503; Peoples National Bank of Greenville v. Upchurch, 183 S. C. 147, 190 S. E. 515, 518. This principle is as follows:

“ Tt is a well established rule that parol testimony is not rendered inadmissible because it contradicts or varies the terms of a written instrument to which the litigant offering the testimony is not a party’.”

The evidence in issue, as I have already stated, does not contradict or vary the terms of the lease, and, next, the respondent herein was not offering any testimony which collaterally attacked the written instrument. Since the word “approximately” was used in the lease, the appellant had the right to prove the number of additional feet that could have or would have been used by her lessee.

Taylor, J., concurs.