Cowles v. Townsend

STONE, J. — The contract declared on in this case is [135] an absolute, primary obligation to pay money. The testimony which the court rejected, was offered with the view of proving a cotemporaneous oral agreement of the parties, that the liability of appellant was not absolute and primary, but contingent and secondary. Thusviewed, a more palpable attempt to vary, by parol, the terms of a written contract, cannot be presented. — See Phil. Ev. Cow. & Hill’s notes, part II, pages 591-3. It is contended that the payees of the bill practiced a fraud on the acceptor, in procuring his absolute promise to pay, when the real agreement was, that he was liable only after the legal remedies against Rudler & Rockwell should be exhausted. Actual fraud generally consists of the assertion of a falsehood, or the suppression of some known fact, which the party is in duty bound to communicate. The violation of a promise, without more, cannot be called a fraud. If, in obtaining the acceptance of Cowles in this case, Townsend & Milliken had informed him that the effect of his acceptance would be to render him liable only after the drawers should be sued to insolvency, and by such statement they had obtained his signature, we will not say such conduct would not furnish a defense to the action. The testimony offered in this case did not tend to prove this state of facts. — Rivers & Porter v. Dubose, 10 Ala. 475. Some of our decisions on this point have gone to the outside verge of propriety. See Murchie v. Cook & McNab, 1 Ala. 41 ; Hopper v. Eiland, 21 Ala. 714. None of them can avail the appellant in this case. There is no sounder principle in the law books, than that which at law, and in the absence of fraud, holds all previous and cotemporaneous .negotiations as merged in the written contract. — Addison on Contracts, 158-9; Litchfield v. Falconer, 2 Ala. 282; Melton v. Watkins, 24 Ala. 436; Stoudenmeier v. Williamson, 29 Ala. 558, and authorities cited. There is no error in the record, and the judgment is affirmed.