129 Ark. 354 | Ark. | 1917
(after stating the facts). The judgment was correct. The appellant does not allege in his answer that the contemporaneous agreement set up by him and asked to be considered as a counter-claim or set-off against the appellee’s cause of action was evidenced by any agreement in writing, entered into at that time or at any subsequent time. Such allegations were essential to entitle him to the relief sought, for if such an oral agreement had been entered into in the negotiations looking to the settlement evidenced by the note, then all such oral agreements would be merged in the note, for the note on its face shows that it was “given in payment for timber cut about which suit had been pending in the Lafayette Circuit Court, ’ ’ and that it was a written contract for the settlement of that controversy.
Now, if there was a contemporaneous or subsequent written contract embodying the terms set up in appellant’s answer, before appellant could avail himself of such- contract as a set-off or counter-claim to appellee’scause of - action, it devolved upon him to show that the written contract sued on did not express the entire contract between the parties, but that there was a contemporaneous or subsequent writing evidencing the matters set forth in' his answer.
Under the familiar principles above announced there was no error in the ruling of the court in sustaining appellee’s demurred to appellant’s answer, and (upon appellant’s failure to amend) in entering judgment final against him. That judgment is therefore affirmed.