English v. New Orleans & North Easter R. R.

57 So. 223, 100 Miss. 809

• Court: Mississippi Supreme Court
• Decided: October 15, 1911
• Status: Published

Opinion

Smith, J.,

delivered the opinion of the court.

Appellant suggests that we have erred in holding that the rule prohibits the varying of a written contract by parol is a rule of evidence, and consequently governed by the lex fori. While this rule is generally treated and referred to as a rule of evidence it may be that it is, in fact, a rule of substantive law, and consequently governed by the lex loci. Assuming, then, that the appellant is correct in stating that this cause must be determined by the law of Louisiana, the judgment of the lower court must still be affirmed; for the “parol evidence rule” in that state, in so far as the point now under consideration is concerned, is identical with the rule in Mississippi. Article 2276 of the Civil Code of Louisiana provides that “neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since;” and the ground of the decision in the case of Barfield v. Saunders, 116 La. 136, 40 South. 593, manifestly is that, “where the stipulation of a writing concerning consideration , is contractual, it cannot be varied by parol.” The rule in Mississippi and Louisiana, therefore, being the same, it becomes immaterial whether the contract here involved is governed by the lex fori or the lex loci; for, in either event, the result must be the same. The statement in our former opinion that “the matter now under consideration relates to a rule of evidence, and consequently the lex fori governs,” was therefore, unnecessary, is hereby withdrawn, and we will express no opinion relative thereto, leaving that matter to be decided when it becomes necessary for us so to do.

We fully understand that this suit was brought upon a verbal agreement, and that appellant does not rely upon the written contract. We also understand that this verbal agreement was only a part of the whole agreement then entered into by the parties; a part of it having been reduced to writing. It is true that the rule in Louisiana is that “where a writing, although embodying an agreement is manifestly incomplete and not intended by the parties to exhibit the whole agreement, but only to define some of its terms, such parts of the actual contract as are not embraced within its scope may be established by parol evidence.” Davies v. Bierce, 114 La. 663, 38 South. 488. For the sake of the argument, we will concede, without deciding, that the same rule prevails in Mississippi, and that the writing here under consideration is of that character; and still we must arrive at the same conclusion, for it would not be permissible to vary by parol that portion of the agreement which was by the parties thereto reduced to writing. Overruled.