From the circuit court of Warren county.

Hon. John N. Bush, Judge.

Booth, appellee, was plaintiff in the court below; Green, appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to the supreme court.

Appellee claimed that appellant gave him a written option to purchase certain land, and at the same time entered into an oral contract to pay him five per cent commissions if he should sell the property in question. Appellee concluded the sale and demanded commissions. Appellant denied that he agreed to pay appellee the five per cent commissions for effecting the sale, and claimed that the price named in. the written option was to be net to him. Appellant asked a peremptory instruction on the ground that, even admitting that there was an oral agreement to pay five per cent commissions, it was not admissible in evidence to vary the terms of the written contract. The peremptory instruction was refused and the jury found for the appellee.

Booth is barred, we contend, from recovery by that salutary rule of law as announced by this court, and with which we know it is perfectly familiar:

“ Where parties embody their mutual agreements in formal written instruments it must be taken as containing all that they then desired to preserve the evidence of; and in the absence of fraud or mistake, it is not competent to add to or take from it by parol evidence.” Goclce v. Blaclcburn, 58 Miss., 537. To the same effect are Wren v. Hoffman, 41 Miss., 616; Bond v. Lynn, 72 Miss., 932; Milling Go. v. Bussell, 89 Miss., 437; s.c., 42 South., 233.

Should the matter of commissions have been mentioned in any particular in the written contract, then any alteration or modification or amendment of the terms of that contract by oral testimony would have been in violation to the rule of evidence, because no evidence can be introduced to vary the terms of a written agreement which requires no explanation, and which does not admit of any variation of what the parties may have personally understood the written agreement to mean.

When there is no mention of the particular controversy involved in the suit made in the contract, it is an entirely independent matter. An entirely different contract, and is just as much separated from the written option as the two poles.

4 Wigmore on Evidence, 2430, tells us that the most usual controversy arises in eases of partial integration, where a certain part of a transaction has been embodied in a single writing, but another part has been left in some other form. Here obviously the rule against disputing the terms of the document will be applicable to so much of the transaction as is so embodied, but not to the remainder.

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