14 Wend. 195 | N.Y. Sup. Ct. | 1835
By the Court,
The learned judge stated the law to the jury correctly, and there is no ground for the reversal of this judgment. It is true, as stated, that previous to the revised statutes, the law was that the consideration of a sealed instrument could not be enquired into; the seal imported a consideration; nor could fraud be shown only in relation to the execution of the instrument; that the party executing the instrument was drunk or lunatic,.or that the deed was falsely read, or another fraudulently substituted, so that the real assent of the mind was never given. Starkie’s Ev. part 4, p. 478, 80. This rule has been recognized often in this court. In Van Valkenburgh v. Rouk, 12 Johns. R. 338, Spencer, justice, after adverting to the rule observes, “ I will not pretend to say that there is not a great deal of technicality in the application of the rule as to the cases in which you may give evidence impeaching the execution of the instrument under the. plea of non est factum, and those in which you may not.” It was, I apprehend, to abolish this technicality that
The plaintiff in error has cited several cases to show that where a parol contract has been reduced to writing, the parol contract is merged in the written contract; and that no parol evidence can be introduced to contradict or substantially vary the writing. This rule of evidence is not disputed. The cases referred to by the plaintiff in error do some of them state the rule with the qualification contended for by the defendant. Thus in Taylor v. Riggs, I Peters, 598, Chief Justice Marshall says: This not being an action for deceit and imposition, but on a written contract, the right of the plaintiff to recover is measured precisely by that contract. The conversation which preceded the agreementforms no part of it, nor are the propositions or representations made at the time, but not introduced into the written contract, to be taken into view in construing the instrument itself. If he (the plaintiff) was drawn into it by misrepresentations, that circumstance might furnish him with a different action, but cannot affect this. Munford v. McPherson, 1 Johns. R. 44, was an action on a warranty on the sale of a moiety of a ship. The plaintiffs on the trial offered to prove a parol warranty, made when the written bill of sale was delivered, which was different from the written war
Judgment affirmed.