65 Ky. 424 | Ky. Ct. App. | 1867
delivered the opinion op the court:
This action was brought, in July, 1864, on a note for six hundred and sixty-six dollars and sixty-six and two third cents, executed by appellee to appellant, on the 7th of February, 1859, and due twelve months thereafter.
For his defense appellee alleged, in his answer, that one J. S. Hughes, appellant, and himself, early in 1859, entered into a copartnership for the sale of goods, wares,
“ Was not the agreement and contract between Hughes, yourself, and myself, on the dissolution of our partnership, that this note sued on was to be surrendered up to me, and you and Hughes to pay me seven hundred dollars, on account of profit in the concern ?”
By agreement of the parties, the case was transferred to the equity docket, and the witnesses examined orally in court, their statements reduced to writing, and certified to this court in the form of a bill of exceptions. Parol evidence was offered by appellee of the agreement of appellant to surrender up the note sued on to him as a part of the consideration of the sale of his interest in the firm effects, in addition to the seven hundred dollars stipulated to be paid to him, and admitted by the court below over the objections of appellant; and judgment having been rendered against him, he has appealed to this court.
It is admitted by appellant’s counsel, that if there was an omission to insert in the writing all the terms of the contract, or if there was a mistake therein, the same can be corrected by parol proof; but he insists that the omission or mistake must be made out by clear and satisfactory proof; that if it is doubtful and uncertain, equity will withhold relief upon the ground that the writing should be taken and regarded as the correct and full expression of the intent of the parties, until the contrary is established beyond reasonable controversy. This is certainly the correct doctrine when applied to deeds or covenants in writing which transfer, or are intended to be evidences of,
But is that the precise question here presented? Appellee, as we have.before seen, asserts that the consideration for the sale of his interest in the firm effects to his partners was, in addition to seven hundred dollars, the agreement on the part of appellee to surrender to him the note; and is it competent for him to establish that fact by evidence aliunde ?
In Trumbo vs. Cartright (1 A. K. M., 582) this court said : “ Whatever may have been the conflict of authority elsewhere on this point, the doctrine, as settled by this court in numerous cases, is, that an acknowledgment in a deed of the receipt of the consideration is only prima facie evidence of payment, which may be rebutted by proof aliunde; and that a recital of a particular consideration does not exclude proof of other and consistent considerations.” And in the case of Gordon's heirs vs. Gordon (1 Met., 285), this question was thoroughly examined, and the case supra, and that of Gully vs. Grubbs (1 J. J. M., 387) carefully reviewed, which resulted in an approval of the principles recognized in those cases; and it was then said that there has beenmo adjudication of this court in conflict with the doctrine there stated.
Upon these, and other authorities which might be cited, there cannot be a doubt that the evidence was competent, and the same was properly admitted by the court, and the judgment seems to be sustained by a preponderance of the evidence.
Wherefore, said judgment is affirmed.