Merrill v. Sypert

44 S.W. 462, 65 Ark. 51, 1898 Ark. LEXIS 23

• Court: Supreme Court of Arkansas
• Decided: February 5, 1898
• Status: Published

Opinion

Wood, J.

1. Parol evidence is admissible to prove that a certificate of acknowledgment was executed on a date other than that appearing on the face of it, without contravening the rule “that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a written instrument.” The factum of the acknowledgment is not questioned, and the rejected proof was to show the true date, of which the date it bore was only prima facie evidence. Hall v. Cazenove, 4 East, 477; Jayne v. Hughes, 10 Exch. 430; Randfield v. Randfield, 6 Jur. (N. S.) 901; Reffell v. Reffell, 12 Jur. (N. S.) 910; Gately v. Irvine, 51 Cal. 172; Shaughnessey v. Lewis, 130 Mass. 355; 1 Greenl. Ev. § 284, note D; 5 Am. & Eng. Enc. Law, 79; 7 Am. &Eng. Enc. Law, 91. See also Fisher v. Butcher, 53 Am. Dec. 436; Meech v. Fowler, 14 Ark. 29; Eolt v. Moore, 37 Ark. 148; Smith v. Scarborough, 61 Ark. 104.

2. The instrument sued on was incoherent and irregular in the order of its contents, as well as unusual in the manner in which it was written. Parol proof was properly admitted in explanation thereof, as same did not tend to contradict or vary the written contents. 1 Greenl. Ev. § 282.

This proof, as well as the writing itself, showed that, upon the happening of certain contingencies, the time for payment therein expressed was to be extended, though the time of such extension was not named in the instrument. Time was not of the essence of this contract. As no time was stipulated for its performance, the law will presume, upon the happening of the events provided for, that the parties intended performance of the contract within a reasonable time thereafter. What such reasonable time is will depend upon the facts'and circumstances surrounding the parties and influencing their conduct in entering upon the contract, as well as upon the nature and extent of the contract itself. Griffin v. Ogletree, 21 So. Rep. 488. The rulings of the learned ttrial court did not accord with these principles. Its judgment is therefore reversed, and the cause is remanded for new trial.