On the Merits.
The nature of this controversy is sufficiently stated in the opinion on the motion to dismiss. It may not, however, be useless to state that its object is tiie dissolution of a commercial partnership and.a liquidation of its affairs.
Tiie petition contains a charge that there was a fictitious and simulated dissolution on the 13th of September, 1879; that simulated instruments of writing were signed, but that they are of no effect. The plaintiff avers that he remained a partner till in October following, and that there were profits, which should be divided between the partners in a stated proportion.
The defense is, that the partnership was legally dissolved by, consent on the 13th of September, 1879, and that the interest of plaintiff in it was then purchased by the defendant.
After hearing evidence and the parties, the court declared that the partnership had been dissolved on the 13th of September, 1879; announced the rights of the partners,, and decreed that auditors be appointed to state the accounts between them, with instructions to report of their finding. From this judgment the defendant has appealed.
On the trial the plaintiff offered oral testimony to show that the instruments signed by him, from which it appears unambiguously that the partnership was dissolved by consent on the 13th of September, *5091879, and that he sold his rights in the concern to the defendant and that the dissolution was advertised, were simulated, and so, inoperative. To the admission of this proof the defendant objected. The testimony having been allowed, the defendant took a bill, upon which he insists.
It is not alleged that the documents were signed and uttered in error, or on fraudulent representations, or obtained by violence.
“Where parties have deliberately put their engagements-into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that such engagement of the parties and the extent and manner of their undertaking was reduced to writing, and all oral testimony of a previous colloquium between the parties, or of conversations or declarations at the time when it was completed, or afterwards, is rejected, as it would tend, in many cases, to substitute a new and different contract for the one which was really agreed upon, to the prejudice possibly of one of the parties.” In other words: “Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” The duty of the court is to ascertain what is the meaning of the words used. It is a duty of interpretation. Greenleaf, Vol. 1, §§275, 277.
The Code is express, that parol evidence shall not be admitted against or beyond what is contained in the acts, nor on what may have been said before, at the time of making them, or since. R. C. 6. 2276, 2242,2244,2238.
The rule is consecrated by law and jurisprudence that, as between the parties to a written act, the only admissible evidence to prove simulation is a counter letter, which is proof of equal dignity. R. C. C. 2238, 2239. The unbending jurisprudence of this Court, does not, accordingly, allow a party to vary or destroy his own voluntary declarations, or written agreements, by anything short of written evidence. The rule applies not only to agreements relating to immovables, but also to such as concern movables. 12 An. 740; 7 R. 96; 5 R. 111; 2 L. 48; 4 An. 441; 5 R. 327; 12 An. 857; 16 An. 150.
It. was distinctly held in an analagous case, that where, by a written agreement entered into at the time of dissolving a partnership, one of the partners, who purchased the common stock, bound himself to pay all the partnership debts, parol evidence was inadmissible to prove a guaranty of the other partner that the debts did not exceed a certain sum. 7 R. 96.
However, where parties to a written contract, by mutual consent enter into a new subsequent agreement as regards some part of it, it has been held that proof of the latter may be made by.parol; but that conversations or understandings preceding the contract are presumed *510to be included in the act. 4 L. 30; 17 An. 32; 5 How. 273; but see 5 R. 326.
The written evidence, consisting of letters' to and from a mutual friend, admitted, it Is claimed, a8 part of the res gestee, if entitled to any weight, does not affect the act of dissolution and purchase of rights of September 13th, 1879, and the testimony received shows no new agreement or contract subsequent to the date of that act, which is conclusive upon the parties and must serve to terminate the controversy between thénr.
The lower court erred in deciding as it did. Whatever be the character of the signed judgment appealed from, it is sucli as can be now reviewed, so as to set the differences of the parties forever at rest.
The evidence clearly shows that the dissolution took place by consent on tile 13th of September, 1879; that the interest of the plaintiff in the concern was then purchased by the defendant, and that their separation was, under their signatures, duly advertised and publicly announced. It is positive, uncontradicted, and concludes the plaintiff absolutely, who is, therefore, without interest in this suit.
It is, therefore, ordered and decreed that the judgment appealed from be reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant, rejecting plaintiff’s demand, with costs in both Courts.
Fenner, J., recuses himself, having been of counsel.