Lockwood v. Holliday

16 W. Va. 651 | W. Va. | 1880

Johnson, Judge,

delivered the opinion of the Court :

It is here insisted for appellant, that the court erred in dissolving the injunction and dismissing the bill, on the ground that by mistake or fraud the defendants induced him to dismiss his former suit, and refuse to comply with the alleged agreement to abate the interest on the debt.

Syllabus 1. The first suit, by a consent decree entered thereon was dismissed. A consent decree dismissing a bill with costs, with no saving therein as to the right to bring another suit is an adjudication of the merits of the cause.

The plaintiff seeks to avoid the effect of said decree in the former suit, on the ground that the defendants proposed, that, if he would make certain promises for the payment of the note of $4,000.00 secured by deed of trust, they would abate the interest on said debt, and says that he accepted this proposition, and dismissed the suit; and they now deny, that there was any such agreement to abate the interest. The plaintiff files with his bill this agreement, which contains the promises for the payment of the debt of $4,000.00, which was certainly very favorable to Lockwood, as it gave him a much longer time in which to pay the debt, and tended certainly to save his property from sacrifice.. But this agreement clearly on its face provides for the payment of the interest as well as the principal of the note of $4,000.00.' He does not directly allege that it was by mistake omitted from the agreement, but that is the inference we are left to draw from the frame of his bill. He alleges in distinct terms, that defendants agreed to abate the interest, and files as an exhibit an agreement that shows there was no such agreement.

Syllabus 2. Parol evidence will not be received to engraft upon, or incorporate with, a valid written contract an incident occurring contemporaneously therewith and inconsistent with its terms. Touras v. Lucas, 13 Gratt. 705. Even if fraud, or mistake in the procurement of the agreement was alleged in the bill, the proof wholly fails to sustain it. I have carefully examined the whole record, and I fail to find anything in the facts or the law of the case, that would not warrant the decree of the court.

The decrees of the circuit court of Marshall county? rendered in this cause 'on the 12th day of December, 1876, and on the 8th day of August, 1877, must therefore be affirmed, with costs and $30.00 damages.

The Other Jubges Concurred.

Decree Affirmed.