The opinion
*877 ON PETITION TO REHEAR
MATHERNE, Judge.
The defendants by Petition to Rehear question the conclusions of law made by the Court; and infer an inability to understand this Court’s decision in the matter. Accepting the Petition as honestly filed for the reasons stated, we observe:
Counsel rely upon their interpretation of the case of Litterer v. Wright (1924) 151 Tenn. 210 , 268 S.W. 624 as quoted and referred to in Samuel v. King (1929) 158 Tenn. 546 , 14 S.W.2d 963 , to the effect the complainants can produce parol evidence in this case for the sole purpose of avoiding their various deeds. Counsel cite the above decisions as authority that parol evidence cannot be produced by the complainants to show alleged inducing misrepresentations not expressed in their deeds but relied on by the complainants in the consummation of the various purchases made by them.
The paragraph counsel rely upon from the Litterer case, quoted in the Samuel case, is as follows:
“The fundamental distinction should be kept clearly in mind between the denied right to contradict the terms of the writing, and the recognized right without so doing to resist recovery thereon, or to rely upon matters unexpressed therein.” (Emphasis added)
The foregoing rule of law is sound, and has been carefully followed by this Court. Counsel should note the ultimate test is that of contradiction, which is never permitted by parol. There is no attempt by the complainants in this lawsuit to contradict the terms of the written instrument; their complaint is that alleged fraudulent misrepresentations, unexpressed in the written instruments, were made to them, upon which they relied to their detriment. The complainants offer by parol evidence to prove those unexpressed misrepresentations; to show their reliance thereon; to charge the defendants therewith; and to show the resulting damage suffered. The admissibility of parol evidence as offered in this lawsuit is bottomed upon alleged fraud, accident or mistake, and that alone.
We reaffirm our holding, for the reasons stated, that the Chancellor under the record as developed before him should have allowed the amendment to the original bill, because the admissibility of the proof tendered was dependent upon a proper allegation of constructive fraud. When fraud is the issue and proof is at hand which tends to establish the existence of fraud, a court of conscience is extremely adverse to a termination of the proceedings absent an examination of the entire matter.
The Petition to Rehear is dismissed at the cost of the petitioner.
CARNEY, P. J., and NEARN, J., concur.