22 Mo. 154 | Mo. | 1855
delivered the opinion of the court.
The plaintiff’s case assumes that he was the beneficial owner of one half of the boat, the legal title to which stood in the name of Conrad, the other part owner, and that he made a verbal sale of his half to Belt, the defendant’s intestate, for which the latter was to pay twelve hundred dollars and one half of the debts ; and that, in order to execute the contract on his part, Conrad, at his instance, made a written transfer to Belt of half of the boat. This is substantially the proof offered, and the court excluded the main part of it upon the ground that the written transfer of the title concluded the matter, and that it appeared by that instrument that the sale was made by Conrad and not by Bennett, and of course that the contract to pay was with him and not with the plaintiff. This, it seems to us, is a total misapplication of- that very wise rule of law that forbids parties who have adopted a written memorial of their contract to contradict it afterwards by oral evidence. This bill of sale is not the written evidence of the contract between Bennett and Belt — that transaction was not put in writing; but after it was made, the bill of sale was executed by Conrad, by direction of Bennett, as a performance of Bennett’s undertaking.
The evidence ought to have been received, and the plaintiff permitted to prove the verbal contract between himself and Bennett, and to recover whatever sum he was entitled to for a breach of that contract.
The judgment is reversed,, and the cause remanded.
