The opinion of the court was delivered by
Hoeton, C. J.:If we can say upon the pleadings filed by the parties that the defendant was entitled to judgment, it cannot be said that the court below committed any material error. (Douglas v. Rinehart, 5 Kas. 392.) Prior to the execution of the written contract set forth in the pleadings, it is alleged that a verbal contract was entered into between plaintiff and defendant, whereby, if the former shipped live stock over the latter’s line of road from Neodesha and Fredonia, Kansas, to St. Louis, Missouri, plaintiff was to have the usual rebates allowed like shippers of live stock over the road. This verbal contract is contrary to and in conflict with the subsequent written contract. It is the general rule that oral 'evidence is not competent (in the absence of fraud or mistake) to show that the parties stipulated at or before the execution of the written contract for something contrary to what is there expressed, or what is legally implied. While it is true that a written contract does not exclude the possibility of a valid cotemporaneous parol contract, yet in such cases the parol contract must be separate and independent from the written one, and must in no respects be contradictory or conflicting therewith.
Again, parol evidence is sometimes competent to explain the understanding of the parties where a contract is partly written and partly verbal, but in the case at bar none of these exceptions applies. Plaintiff could not recover upon the pleadings unless it vfrere competent for him to establish by oral evidence that the written contracts entered into by him at the time the cars of stock were shipped were subject to and controlled by the previous parol agreement. This could not be done. ( Weeks v. Medler, 20 Kas. 57; Railway Co. v. Maddox, 18 id. 546; Cornell v. Railway Co. 25 id. 613.)
The judgment of the district court will be affirmed.
All the Justices concurring.