Gunter & Sawyers v. Road Improvement District No. 1

Kirby, J. (after stating the facts). It is contended for appellants that the court erred in allowing the introduction of the oral testimony to vary and contradict the terms of the written contract for the sale of the bonds and the contention must be sustained. It is admitted that the bid was submitted and the contract as set out for the purchase of the bonds duly executed by the parties and it is not claimed that there was any fraud in its procurement and cannot be claimed that there is any uncertainty or ambiguity in its terms. The oral testimony was contemporaneous with the making of the contract, which was written and executed thereafter and makes no mention even of any agreement on the part of appellants to furnish $3,000 for expenses of preliminary work and Mr. Gunter of appellant firm denies, that there was any such agreement although he admits that afterwards when the commissioners desired'an advance of that sum he was willing to procure and furnish it upon the execution of such a note by them as would be satisfactory. (1) Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument (1 Greenleaf on Evidence, Sec. 275) and as said in Barry-Wehmiller Machine Co. v. Thompson, 83 Ark. 283, “Antecedent propositions, correspondence and prior writings, as well as oral statements and representations are deemed to be merged into the written contract which concerns the subject matter of such antecedent negotiations, when it is free of ambiguity and complete.” See also D. K. & S. Rd. v. M. & N. A. Rd., 104 Ark. 488. It is true it has been held that parol evidence is admissible to explain an indefinite term in a written contract, to add to a written contract some term or provision where the writing on account of fraud or mistake does not contain all of the contract. “But where the written contract is plain, unambiguous and compíete in its terms, it has been uniformly held by this court, that parol evidence is not admissible to contradict, to vary or to add to any of its terms. ” Cox v. Smith, 99 Ark. 218; Collins v. Southern Brick Co., 92 Ark. 504; Lower v. Hickman, 80 Ark. 505; Johnson v. Hughes, 83 Ark. 105. (2) The written contract sued on is complete in its terms and unambiguous and appellees by said parol contemporaneous evidence attempted to engraft another provision or condition upon it and then forfeit the contract for appellant’s alleged failure to comply with such provisions-not embraced and included in the contract, which was executed and delivered after the discussion of this matter, according to their statement, and which contains no mention even of it. Such provision would be an addition to the written contract and vary its terms and the testimony relating thereto was incompetent and the court erred in permitting its introduction. The judgment is reversed for said error and the cause remanded for a new trial.