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120 Ark. 366

Smith v. McLaughlin

Supreme Court of Arkansas

Decided October 18, 1915

Supreme Court of Arkansas · decided 1915-10-18

R. Humphreys, Chancellor; STATEMENT BY THE COURT. Appellant brought .suit to recover judgment for the amount of a note executed to his order by appellee, and to foreclose a mortgage given to secure this note. The note and mortgage were filed as exhibits to the complaint.

Cited by 2 later decisions — most recently October 1953

2 state decisions

Relies on Upton Assignee v. Tribilcock · Martin v. Cole · Cox v. Smith

Good law ✅— No negative treatment on recordhow we know

reversed · Decided 1915-10-18

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Smith, J.,

¶1(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.

¶2The decree will, therefore, be reversed and the cause remanded with directions to sustain the demurrer to the answer. '

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