4 Mo. 206 | Mo. | 1835
Opinion of the court delivered by
Cleaveland brought an action of debt on a specialty given to him by Davis, before a justice of the peace — an appeal was taken to the circuit court, where the parties went to trial. The plan tiff read his bond in evidence.— The defendant then offered to read in evidence, a writing made by Cleaveland to him, which writing acknowledged that Cleaveland had sold to Davis a clock — the writing also contained a warranty that the clock would keep good time for two years, and that if it did not, Cleaveland undertook that he would make good by repairing, or by putting another in its place. Davis also offered to prove that the clock mentioned in the warranty, was the consideration of the bond sued on. This writing of warranty was not under seal. Davis also offered to prove that the clock ran about five months, and then failed to run, and that Cleaveland never came to repair or replace the same. That Cleaveland is a roving man, unsettled and has no residence; so that he could not return the clock to him, he also offerred to prove that Cleaveland represented the clock to him, when he bought it, to be a good time piece. This testimony was all objected to by the counsel of the plantin', the court rejected the evidence, and this rejection constitutes the error complained of. It is insisted by Mr. Wells for Cleaveland, the defendant in error, that this decision of the circuit court is correct, surd sustained by the opinion of this court in this same case between the
With this single exception, that when testimony which is competent and relevant shall be heard by the justice, shall laise a defence which the strict rules of law would not admit to be a defence at law; yet if such defence would be good in equity and good, conscience, it shall be allowed. It seems to this court, this portion of the opiu-ion intends to say, that if by accident an equitable de-fence is proved, it may be allowed. It is admitted by us that the meaning of the court is not as clear and certain as it should have been. The i’ules laid down in relation to the statute are too general.
The rule laid down was that the statute intended to make no alteration in relation to. the rules of evidence. It is insisted by counsel that according to this rule, the defendant cannot go into the consideration of a bond, at law, by any evidence extrinsic the bond, and they lay down the rule to, be, that no parol evidence can be admitted to enlarge, contradict, or vary the terms of a written agreement. It is admitted by us, that this is the general rule. One exception is where the bond was obtained by fraud, a consideration may be proved at law, to be different from that expressed in the bond. The terms may be proved to have been different.
In this case the party offered to prove fraudulent pre-tences, which was not allowed to him. This evidence ought to have been heard. The rules of evidence in law and equity are the same; and the statute has not changed that rule of common law.
•When this rule is applied to the statute, we think the result is this, that a justice of the peace is authorized to let a defence equitable in its character and nature be set up to an action at law, pending before him, no matter whether that action is founded on a bond or covenant. The act requires the justice to decide according to equity and good conscience.
The opinion heretofore delivered, fixes to our txon, the meaning of the act on this point, he is to decide according to the strict rules of chancery law. He must of course be allowed to receive evidence which will prove such defence. In this case, the defendant offered to prove a defence which would have been good if laid in a bill, brought in chancery. He offered to prove that he had an express warranty, that the clock was a good time piece, he offered to prove the clock was not a good time piece, and that the bond was given lor it. lie ollered also to prove that he had no means ol bringing his action on the warranty, by reason that Cleaveland could not be found. ‘
These things if true, would no doubt give him a defence in equity against the bond. We are of opinion that his proof should have been admitted, and that so much of the opinion of this court, as is contrary to this view of this point, was not duly considered, and ought to be overruled.
When the case was up before, the case was entirely a case at law, no equitable defence was raised, — yet the court instructed the jury to try the case as if such de-fence had existed, which was wrong. And some of the
Judge Wash absent.