Graves v. Bodcaw Lumber Co.

Wood, J., (after stating the facts). The judgment was correct. The appellant does not allege in his answer that the contemporaneous agreement set up by him and asked to be considered as a counter-claim or set-off against the appellee’s cause of action was evidenced by any agreement in writing, entered into at that time or at any subsequent time. Such allegations were essential to entitle him to the relief sought, for if such an oral agreement had been entered into in the negotiations looking to the settlement evidenced by the note, then all such oral agreements would be merged in the note, for the note on its face shows that it was “given in payment for timber cut about which suit had been pending in the Lafayette Circuit Court, ’ ’ and that it was a written contract for the settlement of that controversy. Now, if there was a contemporaneous or subsequent written contract embodying the terms set up in appellant’s answer, before appellant could avail himself of such- contract as a set-off or counter-claim to appellee’scause of - action, it devolved upon him to show that the written contract sued on did not express the entire contract between the parties, but that there was a contemporaneous or subsequent writing evidencing the matters set forth in' his answer. (1) This contract could not rest partly in writing and partly in parol, and it is Hornbook law that all prior negotiations leading np to the' written contract are merged therein, and, further, that evidence of contemporaneous parol agreement is not competent to vary the terms of the written agreement. Martin v. Cole, 104 U. S. 30; Cox v. Smith, 99 Ark. 224, and cases there cited. Izard v. Connecticut Fire Ins. Co., 128 Ark. 433; Ashley, Drew & Northern Ry. Co. v. Cunningham, 129 Ark. 346. (2) The writing sued on here showed a complete contract. It showed a settlement by agreeing to pay the consideration named for timber cut. If there were some other terms of settlement than those here plainly expressed, it devolved upon the appellant to allege what these terms were and that they were embodied in writing at the time, or subsequent to the other contract. Under the familiar principles above announced there was no error in the ruling of the court in sustaining appellee’s demurred to appellant’s answer, and (upon appellant’s failure to amend) in entering judgment final against him. That judgment is therefore affirmed.