Forbes v. Taylor

139 Ala. 286 | Ala. | 1903

DOWDELL, J.

Whether the alteration in the contract offered in evidence was a material or immaterial one, is unimportant, as it was shown that the alteration was made without the knowledge or consent of the payee, Forbes. — Montgomery R. Rt. Co. v. Hurst, 9 Ala. 513; Winter & Loeb v. Poole, 100 Ala. 503. It is true that Forbes testified that it was possible for the alteration to have been made by one of his clerks, but he further testified that he did not authorize it, and it wa's without his knowledge. This being true, if the alteration was made by one of his clerks, who had no authority to make it; such clerk was in the transaction as much a stranger to Forbes as if the alteration had been made by some person wholly unknown to Forbes. Apart from any otlfcr consideration, the contract, therefore, should have been received in evidence. The trial court erred in excluding the contract on the ground of alteration.

W. Ti. Sute was the purchaser of the organ in question, McMillan promising to pay for the same. The stipulation in the contract reserving title to the plaintiff, Forbes, until the instrument was paid for/althougli the note or contract was signed by McMillan alone, was as binding on Sute as if he had signed the note himself. He was a party to the transaction, and was bound by this stipulation as much so as if he had signed the contract. The rule of law is well settled that the terms of a written contract may not be varied or contradicted by parol evidence of a prior or contemporaneous verbal agreement between the parties. In a case involving a note or contract similar to the one here, this court held that parol evidence was not admissible to vary its express terms. — Seymour v. Farquhar, 93 Ala. 292; Dexter v. Ohlander, 89 Ala. 262.

The court erred in permitting the defendant, against plaintiff’s objection, to show by the witness Langley, that there was a contemporaneous agreement to release the title to the organ, and to strike out of the note or contract the stipulation retaining title in the seller. It is not pretended that any fraud was practiced in the execution of the note or contract. If there Avas a written release of the title executed to Sute by Langley as the agent of Forbes, then it should have been produced, or its absence accounted for, before offering parol evidence of its contents.

For the errors ■indicated the judgment must he reversed and the cause remanded. , ■

Reversed and remanded.