Campbell v. Davis

1_ Evidence. Written contracts. Parol to show consideration. The real consideration for a promissory note and deed of trust securing it, as distinguished from the expressed consideration, maybe shown by parol in a suit between the parties to enjoin a foreclosure sale in vais under the deed. 2. Payments. Sunday. The court will not deny a debtor credit for a payment, accepted and retainend by the creditor, because made oh Sunday.

From the chancery court of Kemper county. Hon. James F. McCool, Chancellor. Davis and wife, appellees, were complainants in the court below; Campbell, the appellant, the beneficiary, and another, the trustee, in a deed of trust executed by appellees, were defendants there. From a decree in favor of complainants the defendant, Campbell, appealed to the supreme court. Appellees obtained an injunction to prevent a foreclosure sale under a deed of trust executed by appellees to secure an indebtedness due to the appellant. The deed of trust recited the indebtedness to be $700, for money and supplies advanced and that it was evidenced by a note for that sum. The testimony of Davis was that Campbell advanced him only $200, but took the note for $700 and had the deed of trust recite an indebtedness for that sum so that he might, if necessary, use the note secured by the deed of trust, as collateral in securing an advancement from banks and other money lenders; and that he had paid the $200, in different instalments, several of which were made on Sunday, and accepted by Campbell without objection. The appellant objected to Davis’ testimony as to the amount due on the ground that it was an. attempt to vary the terms of the note and deed of trust; and objected to credits for money paid on Sunday* because made in violation of Code 1906, § 1366, rendering Sunday contracts and business transactions, invalid. It was not legally permissible for the appellee to show payments made on Sunday. Code 1906, § 1366, distinctly provides that “if any person, on the first day of th¿ week, commonly called Sunday, shall himself labor at his own or any other trade, calling or business, or shall employ his apprentice or servant in labor or other business, except it be in the ordinary household offices of daily necessity or other work of necessity or charity, he shall on conviction be fined,” etc. The language of' the- statute is very broad and comprehensive. If, then, the payment of a debt is a business transaction, it cannot be done legally on Sunday, and our courts can have no authority to enforce such payment oy apply the same to the reduction of the debt, lie who comes into equity must come with clean hands. Eaton on Equity, 69. The word, “business,” embraces every thing about which a> person can be employed. Netterville v. Barber, 52 Miss. 169. The court will take notice that the fact of payment being made at all is denied by appellant, hence appellant cannot be criticised on the ground of his taking the Sabbath to attend to his business. The court below erred in permitting the appellee to show by parol that the note- and deed of trust did not correctly recite the amount of indebtedness. • When the agreement of parties is reduced to writing, the writing becomes the exponent of the contract, and previous conversations and agreements are merged into such writing; and the terms of the writing cannot legally be enlarged or diminished or varied by parol. O’Neal v. McLeod, 28 South. 23; Herndon v. Henderson, 41 Miss. 584; Baum v. Lynn, 12 Miss. 932; Field v. Stewart, 28 South. 819; Williams ¶. Phillips, 51 Miss. 196; Bell v. State, 38 South. 795 ; Scott v.- State, 39 South. 1012. Code 1906, § 1366, cited by learned counsel for appellant, is highly penal and should be strictly construed. Before a transaction should be condemned under the statute it should appear that the transaction comes within the spirit as well as the letter of the statute. The record shows that appellant Campbell went to the home of Davis, the appellee, on Sunday, received the money and assured Davis that the matter was all right. Can a creditor, on the Sabbath day, receive a payment on indebtedness, accept the same for such purpose, retain such payment, and then be allowed to enforce payment again on the sole ground that the debtor had no legal obligation upon him to make the payment on the Sabbath ? A payment made on Sunday, if retained by the payee, is a valid payment. Smith on Personal Property, 198; Johnson v. Willis, Y Gray (Mass.), 164; Lamore v. Frisbie, 42 Mich. 186; Bldkesley v. Johnson, 13 Wis. 530; Berry v. Planters’ Banh, 3 Tenn. Ch. 69; 2Y Am. & Eng. Ency. Law (2d ed.), 408. Parol evidence of the amount actually due under the note and deed of trust was allowable. The true amount of indebtedness is what the court will seek to ascertain, and not to settle the question of the terms of the deed of trust. The record shows that the note, secured by the deed of trust, was given for much more than twice the amount actually due. It clearly appears that Campbell wanted security for more than was due, so that he might deposit the paper with his bank and draw, more money upon it as collateral than he could hope to do if the true indebtedness were shown. This of itself was a fraud upon Campbell’s part, and oral evidence is competent, under the circumstances, to show the true consideration. Codee v. Bladebourn, '5Y Miss. 689; McDonald v. Kamper, 89 Miss. 221, 42 South. 8YY; Pollen v. James, 45 Miss. 129; Baum v. Lynn, 18 South. 428.