| Ala. | Jul 15, 1830
In this case a great many points have been made by the counsel for the plaintiffs in error. We shall however dispose of those we consider material, without examining those of minor importance. The first objection taken to the record is, that it shews that the Court below admitted secondar}' evidence to prove a written contract. The bill of exceptions in the case does not assume to set out the whole of the testimony, but it shews that on its being proven that the original contract
It is further"assigned for error that the Court refused to permit the defendants below, to prove by oral testimony, that the boat of the plaintiff was by agreement, to be at Mobile in eleven days. By referring to the written contract on which the action was brought, it is very obvious that the testimony attempted to be introduced by the defendant below, would have materially affected the terms in it expressed. How far oral testimony can be admitted to vary the terms of a written contract, is a subject on which the adjudications have not been uniform in the United States. For the reason that there is no Court of Chancery in some of the States; and in such States, a disposition has been cherished, until it has grown into a rule of practice, to admit any testimony that would be a ground of relief in a Court of equity. But in England and most of the States of this union, the current of judicial decisions has been uniform and uninterrupted, and the rule that oral testimony shall not be received, to alter or control the terms of a written contract, has been fully acknowledged. It is true this rule admits of some exceptions, without disturbing its generality; a contract in writing may be subsequently modified by a parol agreement. This could be done without infringing the rule. The written contract would be left inviolate, as expressing the true meaning and intention of the parties at the time it was entered into. In like manner if terms of a dubious or uncertain import have been employed in the written contract, parol evidence has been received to interpret the meaning of such terms.
In some cases too, if a fraud has been practiced by one of the parties, in not writing or reading the contract faithfully, or by promising to make alterations, and failing to do so, Courts of law have sometimes received parol evidence of such facts; but it is not usual in such cases to resort to a Court of Chancery for relief, if such a Court is accessible to the party aggrieved. Customs incidental to a particular class of contracts, have been permitted to he proven by parol, for the purpose of influencing the writ
The only remaining point to be considered, is the correctness of admitting the declarations of Barringer to be given in evidence, to prove that Rhodes was a copartner, after the copartnership, if any had existed, had been dissolved. It was formerly held that an acknowledgment of one of the firm, after the firm was dissolved, could take a case out of the statute of limitations and revive the debt against all the members thereof; but the true doctrine is now held to be, that such subsequent promise will only bind the person making it. When the former rule prevailed, and when a strong disposition was manifested by the Courts, to extend the influence of the acts of one of the members of a firm, after its dissolution, to every transaction in which the firm during its existence had been engaged, no adjudication even then, went so far as to authorize one of the members, after the firm had been dissolved, to create for the other members a new liability. More enlightened views now prevail, and rules more consonant with reason, have by a variety of decisions, regulating and diffusing the respective liability of the members of a firm after its dissolution, been established. In the case under consideration, if the declarations of Barringer after the dissolution of the supposed firm of Barringer Si Rhodes could be admitted, to prove the fact of.the former existence of such a firm, it would hold out to Barringer the powerful consideration of his own interest, to mould those declarations regardless of truth, so as to make Rhodes a joint debtor with himself. If he could by his own declarations, prove that at the time he entered into the contract with Sneed, Rhodes was his partner and jointly interested in the contract, he would thereby divide the responsibility he had incurred. But independent of the objee-
Reversed and remanded.
1 Peters Page 92.