West v. Kelly's Ex'rs

DARGAN, C. J. The general rule is admitted by all, that parol proof cannot bo received to add to, detract from, vary or' contradict a. written contract.- But the application of this gen— [354] eral rule tQ each particular case is frequently a task of difficulty, 2. and bas given rise to as many contradictory decisions, as any . question with which courts have had to deal. If the instrument is perfect and complete, that is, if it contains the entire contract, then the rule is inflexible that parol evidence cannot be received to add another term 'to the written instrument, or to change its legal effect. —3 Starkie on Ev. 1006; Cowen & Hill’s Notes to Phil. Ev. 1471; Litchfield v. Falconer, 2 Ala. 280; Paysant v. Ware & Baringer, 1 ib. 161; Beard v. White, 1 ib. 436; McCay v. Moss & Newberry, 5 Por. 88. But'if it be apparent that the instrument in writing contains but a part of the agreement entered into by the parties, then parol proof may be received to prove the, entire contract, otherwise the contract could not be brought before the court.—Cowen & Hill’s Notes to Phil. Ev. -1471-2-8. -But the parts of the agreement proposed to be proved by parol must not be inconsistent with, , or repugnant to, the intention -of the parties, as shown by "the >. written instrument; for, to receive parol proof of a part not re- . 'duced to writing, which is 'directly repugnant - to the intention of , the parties, as expressed in the written instrument, would at once annul the rule that parbl evidence -cannot be -received to • contradict or vary the terms óf a written agreement.—Jeffrey v. Walton, 1 Starkie, 267; Cowen & Hill’s Notes, 1472. Applying these general rules to the instrument sued on, -and •• to the parol proof offered by the’defendants,- which was rejected by . the court, I can -perceive no error. The note shows upon its face that it was given for professional services, to be-afterwards rendered, but it is payable at a time certain, and is, - in legal effect, a promissory note. The parol proof, however, tended to show that it was the agreement of - the- parties- that the note should not •be .paid, .unless the payees, who-were .attorneys at -law, should be successful in-the suit they were-to bring, and for the bringing of ..which thenote was given. T-aallow. this,proof would be.to. allow parol evidence to change the intention of the parties .as ex..pressed in the note. It would not only alter the time of its.pay- . ment, but would show that the payment of the money, accor- < ding to the contract, was dependent on a condition or a contingency, and thus the legal effect of the instrument as a promis.sory note would be destroyed. _JBut it is argued that the proof offered by the .defendants, was [355] -•admissible, because it tended to prove a failure of 'Consideration. Now I admit that if the proof had tended to prove nothing else, then its rejection would have been erroneous, for there can be no doubt.that parol evidence maj.be received to prove a failure of consideration either in whole or-in part.' But the proof offered bj the defendant went further than this. It tended to prove that the payment of the note was dependent on the condition that the payees were successful in the suit they were to bring, and that this was a term of the contract. It was offered too, as a whole. It might, therefore, properly be rejected, for the court is not bound to separate legal from illegal evidence, when both are offered together. It is for the party himself to separate the legal from the illegal proof and offer such only as is legal. If he does not do this, but offers both legal and illegal evidence as a connected whole, it is not error to reject it. .Let the judgment be affirmed.