13 Ala. 537 | Ala. | 1848
If the contract between the parties was reduced to writing, this written agreement is supposed to contain the entire contract, and it is not permissible to add other terms to the contract than those contained in the written instrument. 1 Ala. R. 161; 5 Porter, 498. The question should have been left to the jury to determine^ whether there was a written contract, or not. If they found that the contract had been reduced to writing, they should then háve ascertained the terms of it, from the parol proof, as the instrument had been destroyed. The second charge therefore requested, was a simple and appropriate charge, and should have been given. The charge given, in lieu of the charge requested, was calculated to mislead the jury. It was, that the plaintiff must prove a contract in writing, or otherwise, that the plaintiff in error, was to let the defendant in error, have the land at the same price, that he had to give Williams for it. The testimony of the plaintiff below tended to show, that the contract was a verbal one merely, and contained the stipulation, that Cole was to let Spann have the land, at the price he had to pay for it.
The testimony of the defendant below, tended to show, that the contract was reduced to writing, and did not contain this term. The- charge requested by the defendant, was adapted to the evidence offered by him. The charge given might mislead the jury, in this, that from it they might think the plaintiff could recover, although the written contract did not contain this term, if the parol contract as proved by the plain tiff, did contain it, when the law clearly is, that all previous conversations, or verbal agreements, are merged in the written agreement, and the plaintiff’s right to recover would
The rule is, that if an appropriate charge is requested, and it is not given as requested, but a charge is given in lieu of the one requested, that is calculated to mislead the jury, it is error. See 4 Ala. Rep. 116; 11 Id. 535, 1059. If, however, the charge given, is not in the language of the charge as requested, yet if the charge given, is a full and fair exposition of the law, not calculated to mislead the jury, the judgment should not be reversed, because the party was entitled to the charge as requested. But in this view I am alone, the court being of opinion, that the party making the request, is entitled to have the charge given in the language requested. But in this case, the defendant was entitled to the charge requested, and the charge given might have misled the jury.. For this the judgment is reversed, and the cause remanded.
