Frost v. Brigham
139 Mass. 43
Mass.
1885
Check Treatment
C. Allen, J.

By the terms of the answer, by filing in court the instrument referred to in the answer as the ■ plaintiff’s *46conveyance and release, by the introduction in evidence of this instrument and of the plaintiff’s deed, and by the whole course of the trial, it is apparent that the chief ground relied on by the defendant was a settlement by the plaintiff of the note in suit, whereby the same was paid in full. Indeed, the report discloses no other defence; and, but for the settlement, no defence, apparently, would have been urged. Upon an examination of the instrument called a conveyance and release, it is quite plain that it does not embrace the note. The instrument, indeed, appears to have been carefully drawn with a view to make it plain that what the plaintiff thereby released was only what she would otherwise have been entitled to take under her father’s will, in case it should be allowed. The deed conveys only her interest as heir at law, or as devisee or legatee under the will.

The defendant then sought by paroi evidence to show that, in point of fact, it was understood that the settlement should include all claims whatever which the plaintiff might hold against the estate, as creditor or otherwise. The difficulty with this view is, that the terms of the settlement were reduced to writing, and the defendant has not sought to rescind and set aside the settlement so made, but he relies upon it as a bar to this action, and introduces the written instruments in support of it ; and, under such circumstances, it is incompetent to prove by oral testimony that other claims not included in the writings were understood at the time to be embraced in the settlement. As was said by the court in Doyle v. Dixon, 12 Allen, 576, 579, “ The evidence offered can be considered in no other light than as an attempt to engraft upon the written instrument an additional oral stipulation founded upon the same consideration and entered into at the same time with the written contract between the parties.” See also Fitz v. Comey, 118 Mass. 100; 1 Chit. Con. (11th Am. ed.) 141, 153, 156.

Since the defendant relied in his defence upon this settlement, the only question of fraud presented was whether it was fraudulent in the plaintiff not to deliver up the note in suit, at the time of the settlement. But this omission could not be considered as fraudulent, because there was no competent evidence to show that the note was embraced in the settlement, and that it ought to be delivered up. The writings, so long as they stand, *47and are not set aside, must be deemed to show conclusively what was settled.

The exclusion of the question to the defendant and his brother furnishes no ground of exception. The witnesses were obviously expected to answer the question in the negative. But this would not be pertinent to any issue which was open to the defendant; and the opinion of the witnesses respecting the course they would have taken if they had known something which apparently they did not know could not, in the absence of fraud on the part of the plaintiff in procuring the settlement, enlarge the rights of the defendant against the plaintiff. Stewart v. Harvard College, 12 Allen, 58, 68. Commonwealth v. Butterick, 100 Mass. 1, 9. Palmer v. Pinkham, 33 Maine, 32.

Judgment on the verdict.