Blanks v. Moore

DOWDELL, J. — The appeal in this case is on the record. The only error assigned is the action of the circuit court in overruling the demurrer of the defendant, appellant here, to the plaintiff’s replications to pleas numbered 9 and 10. The plaintiff filed two replications, each to the two pleas jointly. The demurrer which contained several assignments, ivas addressed to the replications jointly. The demurrer raised two questions. First, that the replications failed to show that the plaintiff was a party, or privy, to the written instrument or contract set up in the replication; second, that the replication failed to show anything to estop the defendant from setting up the matter pleaded in the two pleas, to which the replications were filed. The averments in the pleas were sufficient to show plaintiff’s privity, and hence it was not essential to be shown in the replications. The pleas alleged that the note sued on was given for the premiums of two life insurance policies, and that the plaintiff was the agent in the transaction, and acting for the Insurance Company. There was but a single transaction, and in which the written instrument or contract set up in the replications was made. As to the; second question, the rule is too well established, to require the citation of authority, that a contract in writ-:>-g cannot be contradicted or varied by contemporaneous parol agreement. The replications show that the defense set up in the pleas, was an attempt to vary or contradict by parol evidence the written contract, which, o' course, could not be done. There was no error in the overruling of the demurrer on the grounds therein stated. Affirmed.