Smith v. McLaughlin

179 S.W. 496, 120 Ark. 366, 1915 Ark. LEXIS 56

Opinion

Smith, J.,

(after stating the facts). We think the demurrer to the answer should have been sustained. The execution of the note and mortgage is admitted, but the answer contains no ‘allegation that there was any misunderstanding of what these instruments purported to be, nor that appellee was unacquainted with their contents, nor that 'any fraud was practiced upon him in procuring his signature. The substance of the defense is that, :at the time of the execution of these instruments, there was an understanding which contravened the purport and tenor of the recitals of the note and mortgage. The note is an unconditional and absolute promise to pay a definite sum of money at a given time, and in the absence of any allegation of fraud practiced in procuring the execution of the note, or mistake made as to its provisions at the time of its execution, parol proof cannot be received to vary or contradict its terms. Joyner v. Turner, 19 Ark. 690; Martin v. Cole, 104 U. S. 30; Upton v. Tribilcock, 91 U. S. 45; Casteel v. Walker, 40 Ark. 117; Cox v. Smith, 99 Ark. 218; Delaney v. Jackson, 95 Ark. 131; Bradley Gin Co. v. Means, 94 Ark. 130; Soudan Planting Co. v. Stevenson, 83 Ark. 163.

The decree will, therefore, be reversed and the cause remanded with directions to sustain the demurrer to the answer. '