Seymour & Co. v. Farquhar

McCLELLAN, J. — The evidence is free from conilict, that the appellants — defendants below — bought tlie property sued for from the plaintiff, and in addition to $100, which was to be, but has never been, paid in cash, at the time executed to the plaintiff several notes for the balance of the purchase-money, maturing respectively at three, six, nine and twelve months. On the back of each of these notes, at the time of signature, was the following matter in print: “it is hereby expressly agreed and understood by and between the holder and maker of this note, that the title and ownership of the machinery, for which this note is given, shall be and remain in the said A. B. Farquhar, or his order, until this note, or any renewals thereof, shall be paid.” It seems to be the settled law, that this matter, thus appearing on the backs of the notes, is a part of them to all intents and purposes as if it had been [293] •set forth in the body of the instruments; and we so hold. 1 Daniel Neg. Instr., §§ 144-153; Tied. Com. Paper, §§ 41,41a ; 1 Rand. Com. Paper, §§ 190-196; Polo Manufacturing Co. v. Parr, 30 Amer. Rep. 830; Wheelook v. Freeman, 13 Pick. 165, 169; Bank v. Ewing, 78 Ky. 264. This stipulation being a part of the written contract of the parties, its effect or operation could not be controlled or varied by parol evidence. The testimony of one of the defendants, that they had not agreed to the. retention of title by the plaintiff, can avail nothing agaiust the writing. Notwithstanding this, in legal contemplation, the writing remains the sole expositor of the terms of the contract, it not being pretended that th'e original contract between these parties had been modified in any particular, by mutual consent, after its execution. The evidence is also without conflict, that the purchase-money agreed to be paid for the property had not been paid in whole, nor in any part. On these facts, about none of which was there in a legal sense any dispute, the plaintiff was entitled to the general affirmative charge; and it is wholly immaterial whether the record exhibits any errors committed by the trial court or not, since, if any were committed, they involved no injury to the defendants. — Tuskaloosa Cotton Seed Oil Co. v. Perry, 85 Ala. 158, 168; Campbell v. Lunsford, 83 Ala. 512; Pritchett v. Pollock & Co. 82 Ala. 169; Sipsey River Nav. Co. v. Ga. Pac. Railway Co., 87 Ala. 154; Calhoun v. Hannon & Michael, 87 Ala. 277; Stephens v. Regenstein & Co., 89 Ala. 561. The judgment of the Circuit Court is affirmed.