4 Blackf. 425 | Ind. | 1837
This is an action of replevin. The declaration charges the defendant, Case, with taking and unlawfully detaining certain goods and chattels, the property of the plaintiff. The defendant pleads property in himself. Replication and issue. The cause was tried by a jury who found a verdict for the plaintiff, on which judgment was rendered by the Court.
It appears from a bill of exceptions filed in the cause, that the defendant below and one Henry Case were indebted to the plaintiff in three several notes of hand, for 50 dollars and 14 cents each, payable in 6, 12, and 18 months, dated the 7th of September, 1836; and that on the 21st of September, the defendant and H. Case did, by their certain deed, bargain and sell to the plaintiff below, the goods and chattels named and described in the plaintiff’s declaration, to have and to hold the same to said Winship, his heirs and assigns forever. To this grant there was a condition, setting forth that if the grantors, their executors, &c. should well and truly pay to said Winship the full amount of the notes, &c. as they should fall due, then the conveyance was to be void. The plaintiff below founded his right to the possession of the property on the above-named mortgage-deed. On the trial in the Circuit Court, the defendant offered to prove by parol evidence, that it was the understanding of the parties at the time of the execution of said instrument, that the property mortgaged should remain in the possession of the defendant until forfeiture, but the Court would not permit the testimony to be given,;—to which opinion of the Court, the defendant excepted, &c.
The plaintiff in error insists, 1st, that the mortgagee is not entitled to the possession of the property until after forfeiture; and 2dly, that the Circuit Court erred in not admitting parol testimony to explain the understanding of the parties at the time of the execution of the mortgage.
On the second point made by the plaintiff in error, we conceive the law to be well settled. The Circuit Court did not err in refusing to admit parol testimony to explain the understanding of the parties at the time of making the mortgage. Parol testimony will not be admitted to vavy or add to, extend or limit, the terms of an agreement in writing. Nothing, says Ld. Thurlow, in 4th Bro. C. C. 519, can be addeA to a written agreement, unless there be a clear, subsequent, independent agreement varying the former; but not where it is matter passing at the same time with the written agreement. Where a written agreement for the sale of goods is silent as to the time of delivery, the law implies a contract to deliver them within a reasonable time, and in such case evidence is inadmissible of a contemporaneous oral contract by the purchaser to take them away immediately. Greaves v. Ashlin, 3
The judgment is affirmed with costs. To be certified, &c.