
    Campbell vs. Upshaw.
    The date of payment of a promissory note cannot be postponed beyond the time specified in its face by parol proof, except by fraud, accident or mistake the note does not contain the true stipulations of the contract.
    This is an action of debt, brought to the Circuit Court of Giles county, by appeal from a justice of the peace. The suit was on a promissory note for $160, executed by S. Upshaw to D. H. Abernathy. The note was assigned to Campbell. The note and indorsement were read to the jury by plaintiff, and the defendant read a deposition, which tended to prove, that the plaintiff’s assignor, Abernathy, agreed at the time of his execution of the note, to wait for the payment of this note ($20 being-paid) till the defendant, Upshaw, should make the money from the products of morus multicaulis buds, for which the note was executed. The Circuit Judge, Dillahunty, charged the juryas follows:
    “As a general principle, parol evidence cannot be received to diminish, contradict or vary a written contract. This rule is bottomed rather on principles of public policy than of strict justice, and the exceptions that have been made in particular cases has occasioned great difficulties. It seems to be settled, if parties-enter into a written contract, the writing itself is evidence, and the only evidence, of all it purports to prove: it is the only evidence as to who are the parties to the contract, the time of payment, the amount due, &c. For when an agreement, contract or note has been made, executed and delivered as such, it is not admissible by law to look for its terms outside of the evidence that the parties themselves consented to abide by. But if the note in this case was transferred, after it became due, want of, failure or fraudas to the consideration is an open question and outside of the rule above laid down. If the jury should believe from the proof, that the mulberry buds and silk worm eggs were not furnished, or that there was a suppression of truth, or suggestion of falsehood as to their quality, then defendants would not be bound on the note at all; or if there was no absolute fraud, but a partial failure, defendant would not be bound beyond the consideration received. Again: the written contract is only evidence of what it undertakes to prove; and although defendants cannot go behind it to prove conditions to vary its terms, or set up a cotemporaneous agreement to enlarge or restrain it, yet it would be lawful for the parties to make an independent 'parol contract in relation to the subject matter of their written agreement. Thus a parol agreement upon a sufficient consideration made subsequent to the giving of the note, may be given in evidence to vary its legal effect; and it has been held, that in an action by the payee against the maker, the latter was allowed to give in evidence a verbal agreement intered into when the note was given, that it should be delivered up on his procuring a purchaser for certain lands for the payee, at a specified price, which condition had been performed. Without pretending to reconcile the decisions on this question, the court will leave it with the jury to determine from the proof.
    “1st. Whether any subsequent contract was made; and,
    “2d. Whether at the time the note was given, any independent stipulations outside of the terms of the note, and if they so found, then their verdict should be for defendant.”
    A verdict and judgment were rendered for the defendant, and plaintiff appealed.
    
      T. M. Jones, for plaintiff in error.
    There are two errors in this record, for which this case should be reversed.
    1st. The evidence of John L. Hawkins, proving cotem-poraneous stipulations of the written contract should have been excluded from the jury. The note, which is the foundation of the suit, had been executed to Abenathy for morus multicaulis trees and buds; the time of payment had been fixed by the parties themselves, in the note which Upshaw executed; still the evidence of Hawkins, proving a prior stipulation, and upon which the verdict of the jury evidently turned, was permitted to go to the jury.
    This well established rule which excludes all prior or co-temporaneous stipulations, or conversations, applies as well to cases where a written instrument is not required by law, as to those where it is required, and to simple contracts in writing as well as deeds. See 3d Cowen & Hill’s notes to Phillips on Evidence, note 984, page 1466; most of the leading authorities are collected in this note.
    This well established rule of evidence has been repeatedly recognized by the Supreme Court of this State. The most recent decision is, that of Noe vs. Hodges, in 3 Hump. 162: case of McGlanahan vs. ICeeble, 1 Hump. 120: Richardson vs. Thompson, 1 Hump. 152-3 and 4.
    2d. The charge of the Circuit Court, was well calculated to mislead the jury. The jury were told that it was competent for the parties to make independent stipulations as to the time of payment of the note at the time of its execution or subsequently; and if they did so, they would find for defendant. If it is intended to support this charge upon the ground of a subsequent stipulation, then there should have been a new trial granted, for there is not the first particle of evidence that there was any subsequent contract. The right of proving by parol, independent stipulations at the time of making the contract, outside of the written contract, it is in diiect conflict with the principles laid down by this Supreme Court, as well as the adjudicated cases collected in Cowen & Phillips.
    
      N S. Brown, for defendant in error.
    1st. The charge of the court below to the jury, in reference to independent parol agreements between the parties at the time the note was executed, or subsequently — seems to be supported by authority — and evidence such agreement, if any, was admissible upon the trial; “A matter antecedent to and dehors the writing, may in some cases be received in evidence, as showing the inducement to the contract; such as a representation of some quality or incident to the thing sold.” See Chitty on Contracts, 3 ed., page 25.
    And also in cases, “where the additional terms constitute, in fact, a new agreement, incorporating the former written terms, or containing the former contract, or amount to a substantive collateral agreement.” See id. and page.
    “Where the nature of the subject matter does not require the agreement to be in writing, although a presumption arises, in the absence of proof to the contrary, that the parties expressed in writing the whole of their intention in respect to the subject matter, and intended the written terms to operate as an agreement, yet that presumption may, it seems, be rebutted by express evidence, that what was so written was intended as a mere memorandum of one fact or branch only of a more general agreement, and was not intended to operate absolutely and unconditionally, or it may be shown that a parol contract was made independently, collateral to and distinct from a written one made at the time.” Stark, on Evidence, 6th Amer. ed, pages 572-3.
    Again: with the above exceptions, “the general inference is, that oral evidence may be used indifferently-as original and independent evidence of a fact, either concurrently with or in opposition to written testimony; and that written evidence, however superior it may be, and frequently is in effect to mere oral evidence, does not in any case, of its own authority, unaided by an express rule of law, exclude such evidence.” See id. page 575. See also Keating vs. Price, 1 John. Cas. 22: Fleming vs. Gilbert, 3 John. 528: 5 Day, 428: 2 Dallas, 183: 1 Yeates, 135.
    2d. There is no evidence of any contract anterior to the execution of the note; and, therefore, so far as the charge of the court below may be erroneous in this respect, it can be no ground for a new trial. See Webster vs. Fleming et al, 2 Hump. 518: Porter vs. Woods, Staclcer & Co., 3 Hump. 56.
   Turley, J.

delivered the opinion of the court.

This is an action against the defendant, upon a promissory note, for the sum of one hundred and sixty dollars. Upon the trial the defendant introduced and read to the jury the deposition of one John L. Hawkins, who proved that he heard the bargain, out of which this promisory note arose, made between D. H. Abernathy, the assignor of the plaintiff, and the defendant James J. Upshaw; that it was for the purchase of morus multicaulis buds and the eggs of silk worms; that James J. Upshaw said lo Abernathy, that he was not disposed to buy but a few of the buds and eggs, that he was afraid to go into the business far; and Abernathy insisted strongly that he should buy three hundred and twenty dollars worth, and said if he would purchase that amount, and pay him twenty dollars to buy him a real, he would wait with him for the balance until he made it out of the morus multicaulis.

The plaintiff moved the court to exclude the proof from the jury, which motion was overruled, and the jury found a verdict for the defendant, and there was judgment accordingly; to reverse which the plaintiff prosecutes his appeal to this court.

The testimony of Hawkins ought not to have been received, and when received, it ought to have been excluded. This is an attempt to prolong the date of payment of a promissory note beyond the time specified in it, by parol proof; a thing which cannot be done under any circumstances, except where the instrument, either by fraud, accident or mistake, does not contain the true stipulations of the contract, as we have held at the present term of the court.

There is no such evidence in this case; neither is there any evidence of fraud or failure of consideration, in procuring the contract or in the execution of it.

Judgment reversed, and case remanded for a new trial.  