| Multnomah Cty. Cir. Ct., O.R. | Jun 15, 1868
The motion submitted, and taken under advisement, tbe following opinion was filed granting a new trial.
The first objection is not well taken; it is a general rule that a written receipt may be explained by parol. And tbe general rule that a party is not permitted to dispute bis own deed, is subject to tbe exception that a party may show that tbe consideration expressed in tbe deed is not tbe actual consideration, whenever that becomes a material point.
There is equal reason for permitting a party to show that tbe acknowledged payment has not been made. It is an everyday practice to state a nominal consideration in deeds; and it is equally common to allow tbe deed to contain a formal acknowledgment of payment when none has been made. Where one takes a deed and gives bis promissory note, or a note and mortgage, to secure tbe price, nothing is more common than for tbe deed to recite that full payment has been made, and tbe acknowledgment of payment contained in tbe deed is considered open to explanation.
Tbe second ground of this application is tbe admission of evidence óf tbe state of tbe accounts between tbe parties up to tbe time of tine dissolution.
It would have been clearly error to permit tbe jury to understand that they were to find by their verdict what would have been a fair settlement; this action being for money due upon an express promise to pay a specified sum. But tbe jury were instructed that tbe plaintiff could not recover unless fifteen hundred dollars bad been agreed
Upon the fourth and fifth grounds, I think the verdict should be set aside. There was no evidence tending to show that more than $35 was paid by the defendant at or after the sale of the property. And if the plaintiff established the fact alleged in the complaint, that the defendant promised to pay §1,500 for the property and business assigned, he was entitled to recover at least §1,465. The jury returned a verdict for §800; and the conclusion is irresistible that the jury disregarded the instructions given, and attempted to determine a matter that was not in issue. That instead of passing upon the question of fact, whether the defendant made tire purchase at an agreed price of $1,500, the verdict was rendered with a view to determine thereby what was the probable value of the property, or what would have been equitable terms of settlement at the time. The instructions were explicit, that the plaintiff could only recover upon proof of the alleged settlement. That if a settlement was in fact made, all previous demands wore canceled by, or merged in, the contract of settlement. "Where it is evident that the jury, whether intentionally or inadvertently, have disregarded instructions to the detriment of a party, it is ground for a new trial.
The verdict should be set aside.
The cause was fsubsequeaUy retried; and the plaintiff had n verdict for $1,465.