
    GEORGE W. LINVILLE vs. CHARLES H. HOLDEN, JAMES M. AND JOHN W. YORK, PARTNERS UNDER THE FIRM-NAME OF “YORK BROS.,” AND JOHN W. SHILES.
    At Law. —
    No. 10951.
    I. An agreement in writing cannot be contradicted in its legal effect, where the contract is clear in its terms, by a contemporaneous oral agreement tending to show that the written agreement was not the agreement of the parties.
    II. It is inadmissible to show by parol that a promissory note was not to be paid in money. Such evidence clearly contradicts the legal terms-of the written agreement.
    III. The rule which excludes parol evi dence from contradicting a written, contract is based upon the principle that parties express their meaning when they execute a written instrument.
    STATEMENT OE THE CASE.
    The action was brought upon a promissory note, of which the following is a copy:
    “ $1,131.20. Washington, March 12,1872.
    “ Six months after date we promise to pay to the order of George W. Linville eleven hundred and thirty-one T2^- dollars, for value received, with eight per cent, interest, at the National Bank of the Republic.
    “O. H. HOLDEN.
    “ YORK BROS.
    “JOHN W. SHILES.”
    
      On the trial of the cause, under the instructions of the court, a verdict was rendered for the defendants. The defendants, by the testimony of the defendants James M. York and John W. Shiles, offered evidence tending to prove that, plaintiff having vested in him the title to certain real estate in this city which he had verbally contracted to sell to the defendant Holden at 20 cents per square foot, to be conveyed on Holden’s order on payment of that sum, the note in suit was given for the purchase-money of four lots of said real estate, which were conveyed by the plaintiff on Holden’s order, as agreed upon by the defendants. They then offered to prove that, at the time said note was executed and delivered to the plaintiff, it was verbally agreed upon and understood by and between the plaintiff and the defendants, that, inasmuch as the title to the real estate was in the plaintiff and he could protect himself, when eight other houses on contiguous lots should be put under roof, said promissory note should be surrendered, and the plaintiff should look to said eight lots, with the improvements thereon, for the amount of said note, and that said eight houses were put under roof, and that no part of said note was ever realized by the plaintiff therefrom or from any other source. To the admission of which evidence, as contradicting the said note, the plaintiff, by his attorney, objected, but the court overruled said objection and admitted the same; to which the plaintiff excepted; and the cause is now here on this bill of exceptions.
    
      William F. Mattingly for plaintiff:
    The evidence admitted by the court in this case was clearly inadmissible, because its object was directly to contradict or vary the terms of the written contract, to wit, the note sued on, the general rule being that “ parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” 1 Green. Ev., sec. 275, et seq.
    
    Phillips on Evi., vol. 2, lays down this rule: When a written engagement is absolute and positive for payment of a certain sum on a certain day, as in the case of bill of exchange or promissory note, proof of an oral agreement, made at the same time, is not admissible to show that the payment was to be prolonged, or that it was to depend upon a contingency, or that 
      
      it was to be made out of a particular fund. Cow., 74, Campbell vs. Hodgson; 1 Hill, 116, Payne vs. Ladue; 1 Cow., 249, Erwin vs. Saunders; 5 Denio, 514, Ely vs. Kilborn; 18 Johns, 44, Wells vs. Baldwin; 8 Johns., 375, Fitzhugh vs. Remington; 1 Denio, 400, Brown vs. Hull; 11 Pick., 416, Spring vs. Lovett; 9 Met., 39; 4 Gray, 504, Allen vs. Furbish; 1 MacA., 223. The only exceptions to the rule are cases of fraud and failure of consideration. There is no fraud alleged in this case and no failure of consideration, inasmuch as the plaintiff gave full value for the note in real estate, for which he has received nothing.
    
      T. T. Crittenden and John E. Norris for defendant:
    The defendants Yorks and Shiles did not depend alone upon the verbal agreement for their defense, but upon the fact that, after the note sued on herein was made, said Yorks and Shiles, by their material and labor, erected and put under roof, on the land of the plaintiff, the houses specified in said verbal agreement. They thus increased the value of plaintiff’s property to an amount much greater than the sum sued for, and this was done by an agreement between the plaintiff and said defendants. Chitty on Contracts, 97, note 2 ; Sherman vs. Sherman, 3 Ind., 337.
   Mr. Justice Olin

delivered the opinion of the court:

The evidence admitted by the court in this case was, we .think, clearly inadmissible; because its object was directly to contradict or vary the terms of the written contract by parol evidence tending to show that the written contract sued upon was not the contract made between the parties. See 1 Green. Ev., § 275, et seq. The rule of law has been long well settled that an agreement reduced to writing, and signed by the parties, cannot be contradicted in its legal effect and meaning, where the contract is clear and explicit in its terms, by a contemporaneous oral agreement, tending to show that the written agreement was not the agreement of the parties. See 1 Hill, 116, Payne vs. Ladue; 1 Cow., 249, Erwin vs. Sanders; 5 Denio, 514, Ely vs. Kilborn; 18 Johns., 44, Wells vs. Baldwin; 8 Johns., 375, Fitzhugh vs. Remington; 1 Denio, 400, Brown vs. Hull; 11 Pick., 416, Spring vs. Lovett; 9 Met., 39; 4 Gray, 504, Allen vs. Furbish; 1 MacA., 223. The written contract in this case was what is termed a promissory note, agreeing to pay a given amount of money on a particular day named. The defense set up is substantially that, at the time of executing and delivering the note, it was agreed and understood by the parties that the note was not to be paid in money at all, nor at the time mentioned in the note; but was to be paid in a manner very different from that stipulated in the written contract. Such evidence clearly contradicted the legal import and terms of the written agreement, and was wholly inadmissible, unless the uncertain recollection of witnesses is allowed to overthrow the most solemn written instruments in cases even where no fraud is charged.

It was suggested, on the argument of this cause in banc, that there was no more reason in the rule that contemporaneous parol agreement should not be received in evidence to vary, contradict or modify a written agreement, than to allow evidence of a parol agreement, made subsequently to the execution of the written agreement, to alter, modify, or discharge the same.

It seems to us the distinction between the two cases is. manifest. The rule which excludes parol evidence from contradicting or varying a written instrument is based upon the principle that when parties draw up and sign a written instrument, such instrument expresses their whole agreement in regard to the matter of contract. But in reference to a contract made subsequent to the written agreement, whether by parol or by writing, if founded on a good consideration, it is allowed to alter or discharge the original written contract.

The judgment in this case must be reversed, and a new trial granted.

Cartter, Ch. J., dissenting.  