Groot v. Story

44 Vt. 200 | Vt. | 1872

The opinion of the court was delivered by

Redfield, J.

This was an action of assumpsit upon the following specifications:

May 28th, 1864, to cash, ........ $295 00

To interest to Sept. 10th, 1866,. 40 41

$335 41

In support of the claim, the plaintiff introduced the following instrument:

Due Mr. Harvey Groot two hundred and ninety-five dollars, in part payment for a piano: said piano to be selected by Mr. Groot. Burlington, May 28th, 1864.

H. L. STORY.

The defendant offered to prove that said writing-was executed in consideration that defendant at that date received of the plaintiff an old piano, in part payment for a new piano, wbicb plaintiff was to select from sucli as defendant might have on hand, or from some firm with whom the defendant — being a piano-dealer — was dealing: in which case it was to be bought by defendant for the plaintiff. The defendant received back the old piano at the same price for which ho had formerly sold it to the plaintiff, in consideration that plaintiff agreed to select one costing not less than $550 : in which case the defendant would receive a profit or commission of at least thirty per cent. The plaintiff claimed that the writing was a contract, and that said parol evidence was not admissible to explain, vary, or enlarge the contract; and the court rejected the evidence and directed a verdict for the plaintiff: the execution of the writing, and the selection and demand of a piano in defendant’s store at Burlington, valued at $850, being admitted.

After plaintiff had iusistod that the writing constituted a contract, and objected to the admission of parol testimony to explain it, the defendant objected to the paper being admitted in evidence as a contract, for the want of a five cent internal revenue stamp: which the court overruled.

I. The majority of the court think that the paper constituted a written contract: that it was susceptible of a definite legal construction without extrinsic aid. And the parol evidence was not admissible to explain, enlarge or vary it, and was properly rejected. That parol testimony is inadmissible to explain or vary a written contract, is not disputed; but the boundary line in the multitude of cases, is not always clearly visible between what is and what is not a contract. Parol evidence is admissible to explain or give construction to a receipt, or to explain the condition of the parties and the subject matter of the contract.

In Winn v. Chamberlain, 32 Vt., 318, the plaintiff had signed a paper acknowledging the receipt of a sum of money in satisfaction of certain claims; yet the court admitted parol evidence to explam and control its construction, and extend it to other matters not named in the writing ; and held that the instrument was substantially a receipt. In Noyes & Co. v. Canfield, 27 Vt., 79, defendant contracted in writing to carry “ all freight” at a stated price per ton, and parol evidence was admitted to show that pressed hay was not the kind of frieght intended by the parties ; and the court, Isham, J., said, “ when from the language used, the object or extent of the contract connot be determined, parol evidence is admissible to ascertain the object upon which the contract was designed to operate.” In Putnam v. Smith, 4 Vt., the grantor reserved “ all free stone ” on the land conveyed, and pa-rol evidence was admitted to show that the parties had reference to loose stone on the surface of the laud, and not to a ledge which was afterwards discovered.

My own impression at the argument of this case was — and that impressson has in no degree abated by further examination —that this writing evidenced merely the receipt of a sum of money in part payment of a piano thereafter to be delivered; and hence is subject to explanation by parol.

II. That such extrinsic evidence was admissible to show that the parties intended and delivered it as a receipt and nothing more.

III. That the words “ said piano to be selected by Mr. Groot,” are so “ vague and general ” that evidence aliunde must necessarily be admitted to show the meaning of the parties. When and where and from what stock was it to be “ selected ” ? Could the plaintiff select one of a kind in which defeudant did not deal ?

If parol evidence was admissible to prove that defendant was a dealer in pianos, thereby to raise a presumption, it was admissible to rebut that presumption. “ Previous conversations between the parties may be shown when it becomes important to show in what sense subsequent writings passing between them were understood.” 1 Greenl. Ev., § 288, a; Macdonald v. Longbottom, 1 Ellis & Ellis, 977.

But a majority of the court think that this writing constitutes a contract, and is not subject to be explained or affected by parol evidence.

The judgment of the county court is therefore affirmed.