86 Ala. 495 | Ala. | 1888
We are not inclined to question the correctness of the decision in Day v. Thompson, 65 Ala. 269, and many other authorities which assert the same principle. It is certainly the law, and rests on the soundest reason, that when parties make, a contract, and reduce it to writing, neither party will be heard, even as between themselves, to set up or prove that there was an oral, contemporaneous agreement that the contract shall have effect different from the legal import of the language intentionally employed. This rule, however, does not prevent the correction of mistakes made, when it is clearly shown that the writing does not express what the parties intended. As we understand this record, the case is not controlled by the rule declared in Day v. Thompson. True, Lewis testifies that Pogue kvas indebted to Avery & Sons, and that he, Pogue, brought to him the note of Whitten, payable to Miller and indorsed by him in blank, and traded it to him in discharge of Pogue’s debt. He testifies further, that when this took place, he had no notice that Miller had any interest in the note. Lewis was the agent and collector of Avery & Sons. But the testimony of Pogue and Miller is directly opposed to this. Pogue’s testimony was weakened by the cross-examination, but nothing was shown to impair the force of Mil
We agree with the chancellor, that the weight of the testimony shows that Avery & Sons never acquired any interest in the note, but only a right to half of its proceeds, if it had been discounted. For that purpose alone the note was placed in Lewis’ hands, not as owner, but as agent. When he failed, it became his duty to return it to Miller and Pogue. If he desired to acquire a right to Pogue’s interest, that was a subject he might have negotiated about. He is not shown to have, done so, and hence fails to show any interest whatever in the note.
Affirmed.