Thompson v. Bryant

Enochs, Special J.,

delivered the opinion of the court.

Appellant sued appellees, in court below, on a note for $500, dated February 13, 1894, made by J. O. Bryant and indorsed by Buford & Bryant, payable to the order of appellant ninety days after date, with ten per cenLum interest after maturity, for value received. The appellant and said Buford were partners, doing a mercantile business in the town of Oxford. On February 13, 1894, appellant sold to J. O. Bryant his half interest in the business of Buford & Thompson, and executed and delivered to Bryant a bill of sale in these words: “ I hereby bargain, sell, convey and warrant to J. O. Bryant, for $1,700 in hand paid, receipt of which is hereby acknowledged, my entire half interest in stock of goods, wares and merchandise, cash on hand and on deposit, together with fixtures, books and accounts, notes and choses in action, of whatever description, in the business of Buford & Thompson, a firm composed of P. C. Buford and myself, J. E. Thompson, doing business in the. *15 town of Oxford, Miss., in brick storehouse on west side of square in said town. ’ ’

Defendant, J. O. Bryant, plead that he was the owner and holder of certain accounts against the old firm of Buford & Thompson, and filed an itemized account of said claims as a set-off, together with an account due by appellant originally to Buford & Thompson, and certain taxes due on the property sold to defendant. The trial resulted in a verdict and judgment for J. O. Bryant for §3.10.

.It is in evidence, and is admitted, that §1,200 of the purchase price were paid in cash, and that the note sued on was executed for the balance due appellant for his half interest in the business of Buford & Thompson. Appellant offered to prove, on trial below, that the written contract did not express the true and real contract between the parties — that Bryant assumed appellant’s part of the indebtedness mentioned in his set-off. The court excluded this testimony, on the ground that oral evidence was not admissible to alter or vary the terms of the written contract.

Appellant makes five assignments of error, but they all prer sent the single question whether the court below erred in excluding the testimony offered by appellant to prove that Bryant assumed the debts mentioned in his set-off as a part of the consideration for his purchase. This is the ground of error relied on by appellant for reversal, and our decision will be confined to this question.

The terms of a contract are the propositions stated and accepted by the parties, and when these are reduced to writing the writing settles the contract and binds the parties, and it is not competent, afterwards, in a trial at law, for one of them to show, by parol evidence, that the written contract does not express his real agreement. It has been repeatedly ruled, in this court, that a contract cannot rest partly in writing and partly parol. Herndon v. Henderson, 41 Miss., 584 ; Wrenn v. Hoff *16 man, 41 Miss., 616 ; Dixon v. Cook, 47 Miss., 220 ; Cocke v. Blackburn, 58 Miss., 537 .

Appellant, however, insists that the proffered testimony was competent to prove the real consideration of the contract, and that it would not come under the rule condemning parol evidence to alter or vary the terms of the contract. The subject of the admissibility of parol evidence to prove the real consideration of written contracts, was fully discussed and set forth in an elaborate opinion by Judge Cooper, in Baum v. Lynn, 72 Miss., 932 . It was held, in effect, in that opinion, that a consideration recited or admitted merely as a fact may be varied by parol, while the terms of a contract may not be, and that, when the stipulation as to consideration becomes contractual, it, like any other written contract, is the exclusive evidence, and cannot be varied by parol. The terms of the contract are embodied in the note and bill of sale, and the contract they disclose shows what each of the parties finally agreed and contracted to do, and what they did, in relation to the transaction. Thompson sold and warranted his half interest in stock of goods, merchandise, etc., in the business of Buford & Thompson, to J. O. Bryant, and Bryant paid him $1,200 in cash, and gave him his note for $500, payable in ninety days. It is clear that the consideration is contractual, and is not a mere fact recited or admitted in the written contract. It cannot be said that the proffered testimony would not contradict, alter, add to or vary the terms of the contract, but only a mere fact recited or admitted in the contract. To permit appellant to show that Bryant assumed his part of the debts of Buford & Thompson, at the time he executed his note to appellant, would most certainly import a new element into the contract. The testimony was properly excluded.

Affirmed.