167 N.W. 158 | S.D. | 1918
Thlis action is based upon the fallowing ,-vyrátten contract:
“Op demand; for value received, I promise to pay to the order of Julius Rosholt four hundred ¡and 00-100 dollars alt the First State Bank of Triffmiain, S. D., with interest a.t the rate of ten par cent, per ¡annum after maturity until paid, provided that the said Julius Roshpilt shall build ¡or cauisie to be built a railroad, the nearest point to which shall not 'exceed seven miles from ¡section 14, Red Iron. It is .expressly understood that this note is due and payable when the first train shall have moved over said railroad. This note is null (and void if said railroad is not built by June is't, 1915. P. O.., Sisseton, S'. D.
“J. R. Woulph.”
•Defendant admits the execution of the contract. The evidence -showsi that the railroad was constructed within the time fixed by (thie ¡terms of the contract, and that it was so ¡donstruict'ed that at one .place it is within seven miles otf the nearest point ¡on 'section 14, Rad Iron township. By way of- defense to plaintiff’s ■right of recovery, ¡defendant alleged in his answer, and offered ¡to prove at thie ¡trial that at the time of the execution of the said contract, and as O. consideration ¡therefor, the plaintiff expressly agreed that there should be a ¡station ¡on saliid line of railway and that such station should be within seVen miles of defendant’s residence situated! upon said ¡section 14. It is not claimed- by defendant that he ¡did not ¡read the saiid contract before be signed ■it, nor 'that he (did not undersitanidi the contents thereof, nor that plaintiff ¡in any mlanner misrepresented tlhe facts or deceived defendant as to the contents or meaning of the said contract. The trial court excluded all evidence tending to show that the 000-tract or understanding of .tire parties was cither than ¡as appears by ‘the terms of thie written instrument and directed a Verdict for plaintiff. From a judgment entered upon said verdict and an order denying hlis motion1 for a newt trial defendant appeals.
Appellant relies upon what is said by this court in South Dakota Cen. R. R. Co. v. O. H. Smith, supra, in -support of his contention that the court erred in excluding tire oral evidence offered by him. But that case is not in point. In that case the contract that was the bias-is of th-e action called) for the- construction of a line of railroad- on the west line- of a designated section of land 'belonging -to th-e defendant Oral evidence was received to show that the road wias not- located! on the west line of said section, but sudb evidence related only to a compliance with the terms of the c.olmtraot, and in no wise tended to' add to, contradict, or even .explain aoytiiing contained) therein. -In that case the court pemriltted the dleffiendanf to show by oral evidence what the agreed consideration for tine note was, and that such consideration had failed. In -this case, the consideration is expressly stated
“The execution of a contract in writing, whether the law requires it to. be written or moit, supersedes all the oral negotiations * * * concerning its matter, which .preceded or 'accompanied the execution of the instrument.”
Therefore, in the absence cif frauidl or deceit that would vitiate the contract, such contract is conclusively presumed to embody the substance of the agreement.
The judgment and order appealed from are affirmed.