Reese v. Strickland

1. Although where “a contract or cause of action” has been reduced to writing its terms cannot be varied by parol cotemporaneous evidence, yet where suit was brought thereon and the defense in part was failure of consideration and there was some evidence to support the same, it was error for the court to charge that “parol evidence cannot be introduced to attack it [the contract or cause of action] in any way, unless said writing is first overthrown by proof of fraud, accident or mistake.” To vary the terms of the contract, and to attack the plaintiff’s cause of action thereon by pleading and proving failure of consideration, are altogether different things.

2. Assuming that the magistrate charged the jury as alleged in the .traverse to his answer, which traverse was found true, the superior court did not err in holding that this charge was erroneous, nor in sustaining the certiorari because of the error therein committed. Judgment affirmed.