Miles v. Sledge

47 So. 595, 157 Ala. 528, 1908 Ala. LEXIS 181

Opinion

ANDERSON, J.

— The estopped set up by the special replications in the case at bar was the same as the one set up by the replications in the case of Blanks v. Moore, 139 Ala. 624, 36 South. 783, and it was there held, and properly so, that a contract in writing cannot be contradicted or varied by a contemporaneous parol agreement. It is true that the pleas were doubtless framed under the case of Parker v. Bond, 121 Ala. 529, 25 South. 898, and were there held good as against the demurrer; but the plaintiff did not, in said case, resort to a replication. The plaintiff, in the case at bar, evidently conceded that the pleas were good under the Bond Case, supra, and replied thereto under the authority of Blanks v. Moore, supra.

Whether or not so much of the contract as was relied upon should have been set out in the replications we need not decide, as this point was not presented by the demurrer. It is sufficient to say, however, that it was set out or referred to as an exhibit in some of the replications. The trial court erred in sustaining the demurrer to plaintiff’s replications, and the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.