Henderson v. Mayhew

2 Gill 393 | Md. | 1844

Magruder, J.,

delivered the opinion of this court.

This action was brought by the appellants, to recover from the appellee a sum of money alleged to be due, for supplies furnished for the brig Harriet, by the appellants.

It is not disputed that the supplies were furnished, but it is insisted by the appellees, that they are not responsible for them.

1st. Because they were not the owners of the vessel:

2nd. Because the credit was given to another, to wit, to Hugh Boyle.

There was certainly evidence offered to the jury, that the appellees were the owners of the vessel at the time that she was furnished with the supplies. But the account against the vessel and its owner, was sent to Boyle, and this it is supposed, was giving credit to him. It appears however, that Boyle was at one time the owner of the vessel, and it would seem that the account was sent to him, under an impression that he was still the owner. This proof of the account being sent to Boyle, cannot discharge the owner, if, but for this proof, he would have been answerable. Unless the seller knows at the time who the principal is, and notwithstanding that knowledge, makes the agent his debtor, the principal is not discharged. (See Roscoe on Evidence 216, and the authorities there collected.) Notwithstanding all the testimony, then, on the part of the appellees, designed to show that the credit was given to Boyle, the former may be answerable, and it is a materia] question in the case, whether Boyle, in purchasing these supplies, is not to be regarded as the agent of the appellees? There was testimony offered to the jury, “tending to prove” the agency. Of the weight to which that testimony was entitled, the jury are the exclusive judges.

The court below, therefore, erred in granting the second prayer of the defendants below, as it withdrew the question of agency from the consideration of the jury, and also in giving the instruction which was given, in lieu of the instruction asked for by the appellees in their third prayer.

No error is discovered in the rejection of the appellants’ first or third prayer.

The appellants, who were defendants in the court below, took exception to the opinion of the court, that parol evidence was inadmissible to show, that the bill of sale was intended to be a mortgage. It is the opinion of this court, that the decision was correct. Parol evidence is inadmissible to change or contradict the terms of a written instrument. Strangers to the instrument, when authorized to impeach or contradict it, may offer parol testimony for that purpose; and so a grantor may, in a controversy with the grantee, if he charges the same to have been obtained by fraud or mistake. But the parties to a written instrument are not permitted, in controversies with strangers, to insist, that it does not express what it was intended to express. The appellants, after obtaining an absolute deed, and authorizing the community to regard them as the owners of the vessel, cannot now, for their own benefit, be permitted to allege that their bill of sale is a mortgage.

The party here, who is a stranger to the deed, insists, that it is what it purports to be, and the appellants who accepted it, are precluded from offering the evidence on which they rely, in order to defeat the action against them.

Judgment must therefore be reversed upon the appeal of the structions given by the court to the jury. And affirmed upon their first and third prayers. below, upon this second prayer; and upon the in-

Upon the appeal of -the defendants below, the instructions to which they excepted, are affirmed.

Dorsey, J., dissented to the affirmance, upon the appeal of the defendants below.

JUDGMENT REVERSED UPON THE APPEAL OF J.'& G. Henderson, and procedendo awarded.