Bowman v. Torr

| Iowa | Dec 15, 1856

Weight, C. J.

The errors relied upon in argument, are: Hirst, that the testimony of the verbal agreement was improperly admitted, because it tended to contradict, vary, or add to, the written contract; and, Second. 'If admissible, it was not sufficient to -sustain the verdict.

The writing signed by defendant is very brief, and appears to be nothing more than a memorandum, showing that he had sold to plaintiff his “ claim,'” on a certain section of government land. In this writing, however, nothing is said as to defendant’s liability in the event of the land’s being entered. It is said, that the object of this testimony, was to show what was to be his liability in -that event. Viewed in this light, we unite in the opinion that the testimony does not'tend to contradict or vary the language used in the writing. We are not unanimous in the opinion, however, that treated simply inthe light of a parol contemporaneous agreement, it does not tend to add to the written agreement. But as we think the -testimony was properly admissible on other grounds, we need not determine this question. The declararation claims damages for the alleged fraud of-the-defendant, in the sale of this claim. Having sold the '“ claim,” it being personal property, he warrants the title. Under such circumstances, if the title failed, he would at least be liable for the purchase money, with interest; and, therefore, without proof of any agreement to that effect, the law raises an implied undertaking to that extent. The -proof of such an agreement, in no manner increases his liability; for to that extent, he is bound at all events by his written contract of sale. In this view of the case, the admission of this testimony could work no prejudice to defendant.

But again, it-has been uniformly held, that the rule that parol evidence is not admissible to contradict, -vary, or add to, a written instrument, is not infringed by evidence tending to show that it is altogether void, or never •had a legal existence or binding force. Fraud, practiced by one party to the contract upon the-other, in that which is the subject matter of the action or claim, may therefore be shown by parol; and this, not to vary, contradict, or add to the writing, but to show that it never had any binding force or effect. It being charged, therefore, in this petition, that defendant practiced a fraud on plaintiff, in the sale of this “ claim,” and it being further averred that he knew at the time of the sale, that the same was entered, we think this testimony was admissible to show the manner in which the fraud was practiced. The word “ claim,” when used in connection with the public lands, has with us a known and definite signification. It refers and relates to a settler’s right or improvement, on a tract of land, the fee of which is in the government. And we can, therefore, readily see, that proof that a vendor of such a claim,” represented the same to be unentered, and promised to refund the purchase money, if his statement was untrue, would be well calculated to deceive the vendee, and be a strong inducement to the contract. If upon the faith of such false representations, he obtained the plaintiff’s money, he was bound at least to refund it. For the purpose of establishing this fraud, we think this testimony was admissible.

As to the second error, we have no hesitation in saying, that the testimony to sustain the verbal contract, is slight indeed. The view above taken, however, renders its sufficiency comparatively unimportant. For, if the defendant was by the written agreement, at least, liable to the extent attempted to be shown by what is termed the verbal contract, the parol testimony was unnecessary, and its admission could not prejudice appellant. But aside from this, we cannot conclude that the verdict was, in this respect, so manifestly against evidence as to justify the granting of a new trial. It must be a clear case, indeed, as we have frequently held, before we will reverse a case on the ground, that the verdict was against the weight of evidence. In this case, we cannot say that the jury might not reasonably and fairly have concluded, that the plaintiff’s allegation was sustained by the parol testimony.

Judgment affirmed.