Campbell v. Davis

47 So. 546 | Miss. | 1908

Eletchbr, J.,

delivered the opinion of the court.

The contention, earnestly argued, that the chancellor erred in permitting the complainant to show by parol that the note and deed of trust did not correctly recite the amount of the debt, but a sum far in excess of the true indebtedness, must fail in the light of the explanation given by Davis, and .which was accepted by the chancellor as true. This statement was that only $200 was owing, but that at Campbell’s request the amount was stated as $700, in order that Campbell might use the paper as collateral. This brings the case squarely within the well-established rule thus admirably stated by Judge Campbell: “The terms of an obligation, assumed to be valid, cannot be varied by 'parol; but it may be shown by parol what caused the party to thus oblige himself. That consists with the written obligation, .and does not vary it. The right to show the real consideration is a qualification of the general rule of the admissibility of parol evidence to alter the terms of a written contract, and is as well established as the rule itself. What I bind myself by writing to do cannot be varied by parol; but I may always show by parol what induced me to thus bind myself, and thereby test the question whether I was legally bound, as the writing imports, or .whether I have been by any cause wholly or partially freed from my obligation.” Cocke v. Blackbourn, 57 Miss. 689. A case almost identical on the facts is McDonald v. Kamper, 89 Miss. 221, 42 South. 877. Authorities which may seem to hold otherwise will he found to be readily distinguishable on the facts of each particular case.

There is no merit in the contention that no credit should have been allowed for payments made on Sunday. Creditors may not receive and retain such amounts and again enforce their payment. 27 Am. & Eng. Ency. Law (2d ed.), 408. Upon this record we do not feel justified in overturning the chancellor’s finding on the facts.

Affirmed.