
    ROSHOLT, Respondent, v. WOULPH, Appellant.
    (167 N. W. 158.)
    (File No. 4295.
    Opinion filed March 26, 1918.
    Rehearing denied May 7, 1918.)
    1. Evidence — Contract, Consideration — Payment, for Building Railroad Near Land — Building Station, Parol to Show, Competency.
    
      In an action upon defendant’s written promise to- pay plaintiff a specified sum, provided plaintiff shall cause to he huilt a railroad, the nearest point to which shall not exceed seven miles from a certain section of land, held, that parol evidence is admissible to show that as a consideration for the promise, plaintiff agreed that there should be a station on said line within seven miles of defendant’s residence upon said section; since, while parol is competent to show want of consideration for such instrument, or that the same was obtained by fraud, or that the instrument sued upon contains but part of the agreement, the instrument in question expressly states the consideration; while the offered testimony would tend to prove an agreement entirely different from that set forth in the written instrument. South Dakota O'&n. R. R. Co., v. ■Smith, 22 S. D. 2X0, 116 N. W. 1120, distinguished.
    3. Evidence- — Con tracts, Consideration — Oral Negotiations Preceding Contract, Coxxtx'act as Superseding — Statute—Contents of. Writing, Presumption.
    ■Conceding it to be true that, during oral negotiations between plaintiff and defendant resulting in execution of the contract in suit, the location of a railroad station within seven miles of defendant’s residence may have been discussed or demanded by plaintiff as a consideration for signing a contract under which he agreed to pay plaintiff a certain sum in consideration of plaintiff’s causing to be built a railroad, the nearest point to which should not exceed seven miles from a section of land upon which defendant resided, evidence of such negotiations is incompetent under Civ. Code, Sec. 1239, providing that the execution of a written contract, whether required by law to be written or not, supersedes oral negotiations concerning its matter which preceded or accompanied execution thereof; and in absence of fraud or deceit that would vitiate the contract, it is conclusively presumed to embody the substance of the agreement.
    Appeal from Circuit Court, Marshall1 County. Hon. Thomas L. Bouck, Judge.
    Action by Julius RosíholK!, against J. R. Wotrlpb, to recover ■•upon dbftendlant’s written promise to pay mooey. From a judgment for plaintiff, and from am olrdler denying a mew trial, defendant laipipeiail-s.
    Affirmed.
    
      Sherin & Sherin, for Appellant.
    
      Anderson & Waddell, for Respondent.
    To ¡pcáolt one of tille opinion, Appellant cited: Vol. 3, R. C. L., Sec. 139; South Dakota Centra! Railway Co. v. Smith, 116 N. W., 1120 (S’. D.).
    
      Respondent cited: Jones ton Evidence, 2nd Ed.., p. 146; Towner v. Tucas, 13 Gratt. 705; Anderson v. Matheny, (S. D.)', 85 N. W. 9x1; Johnson v. Puglhi, (Wis.) 85 N. W. 641; 17 Cyc., 610.
   POLLEY, J.

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.

It is claimed by the appellant ¡that the evidence offered by him and excluded by the court was for the purpose of showiing* want :olf 'consideration of the note- or contract sued upon. If that had) been the only purpose and1 the only result of such testimony, it would have been error to halve excluded it, for it is well settled that in an 'action by the original payee on a note or contract parol evidence ii® competent to' shioiw a want of consideration for such instalment, or to show that the same was obtained by fraud or deceit, or that the instrument sued upon contains: but a part of tine agreement. Herreid v. C., M. & St. P. R. R. Co., 38 S. D. 68, 159 N. W. 1064; McCormick Harvesting Mach. Co. v. Faulkner, 7 S. D. 363, 64 N. W. 163, 58 Ann. Rep. 839; Davis v. Jeffris, 5 S. D. 352, 58 N. W. 815; South Dakota Cen. R. R. Co. v. Smith, 22 S. D. 210, 116 N. W. 1120; Kulenkamp v. Groff, 71 Mich. 675; 40 N. W. 57, 1 D. R. A. 594, 15 Am. St. Rep. 283; West v. Kelly, 19 Ala. 353, 54 Am. Dec. 192. But (the testimony offered by appellant in this, dase goes further than to merely show a want of consideration for the contract in question. 'Such testimony, if admitted, would tend- to- .prove an agreement entirely different from- the agreement set forth in tfoJe written instrument. A.11 agreement to construct -a, 'line of' railroad) and locate a station thereon -thalt would be within a specified distance of a dwelling house situated upon a designated section of land is materially different from an agreement to so -locate a line of railroad that some point thereon- would be within a specified distance of saidl section of laird, but without any reference whatever to' either a station or a dwelling house.

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 uipon the face of the instrument sued upon.. There was no uncertainty or ambiguity of terms, and oral evidence tending to vary or contaadict said terms was incompetent, and wias properly ex-ciuxfed by the triad court.

Conceding" it to be a fact that, during- the negotiations between appellant ancl respondent that resulted in the execution of the contract, the location of a station within seven miles of appellant’s residence may have been cliiscuseed or even demanded, by appellant as a consideration for signing saidi contract such negotiations are not competent under the pilovisions of section 1239, C. C. This section provides that:

“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.  