25 Barb. 204 | N.Y. Sup. Ct. | 1857
The plaintiff was bound as an apprentice to the defendant, on the 20th of May, 1853. At the expiration of two years, two months and fifteen days, and on the 4th of August, 1855, he left the service of his employer, and a few days after brought this suit against him, to recover damages for the want of proper instruction in his trade..
On the trial, the plaintiff proved an indenture of apprenticeship, containing an agreement on the part of the plaintiff to serve for two years, two months and fifteen days ; that he had so served, and had not been properly instructed in his trade. The defendant set up the non-performance by the plaintiff of
The defendant’s counsel then offered to prove, by parol evidence, that in the statement of the length of the term of apprenticeship, in the articles read in evidence by the plaintiff, there was a clerical error, on the part of the scrivener who wrote the same, by which the word “ two,”before “months,” was written for “ ten,” and that it was intended by the parties that the word “two” should have been written “ten.” This testimony was objected to by the plaintiff, and excluded by the court. The correctness of this ruling is the only point presented on this appeal.
A contract (con-traho) is a drawing together of minds until they meet. This agreement to do, or not to do, a particular thing, is the contract. By statute, (2 R. S. 155, § 1,) when this agreement is to bind an apprentice, it must be committed to writing. This writing, popularly speaking, and even in the statute (2 R. S. 155, 6, §§ 12, 13,) is called the contract; more accurately, it is not the contract, but the evidence of it. It is well settled, that when parties have committed their agreement to two or more contemporaneous writings of equal authority, neither is the exclusive repository of the intent of the parties, but both must be construed together, as one instrument.
In considering what is a sufficient written contract, under the statute of frauds, Starkie says, “ the terms of the contract may
In Cornell v. Todd, (2 Denio, 130,) it was held, as it had often been held before, that several written instruments, executed at the same time, between the same parties, and relating to the same subject matter, should be construed together as forming parts of a single contract or conveyance. The court said it was not necessary that the instruments should in terms refer to each other, if in point of fact they were parts of a single transaction. That fact may be shown by extrinsic evidence. In Hull v. Adams, (1 Hill, 601,) Cowen, J., says: “ Take, as you must, all the papers passing between these parties together, and consider them one instrument; for they were all executed at the same time, and relate to the same subject; you have then,” &c. A subsequent judgment, conforming to this opinion, was, it is true, reversed upon error. (2 Denio, 306.) But it will be seen by comparing the proof offered at the last trial, as stated in 2 Denio, 308, with that given upon the first trial, (1 Hill, 602,) that there is a material difference between the fact sought to be proved upon the two occasions. The reversal is not put upon the ground of a mistake in the proposition that the writings, if contemporaneous and relating to the same subject matter, should be taken together. But the prevailing opinions in the court of errors take the proper distinction that the two notes were prima facie complete and independent agreements, wholly distinct from the contract of the maker of the notes in relation to the lease. As these notes and contracts did not appear, from any thing on the face of the papers, to relate to the same subject matter, that connection must be shown. And the right of the one party to establish one kind of connection between these papers, from the very nature of the case, gave his opponent the right to contradict that proof, by showing either that there was no connection, or that it was of a different kind from that set up by the plaintiff.
In the present case, there is no question as to whether the
In this one instrument there is a variance in the two forms of expression, which were clearly intended to express the same idea. As the instrument stands, the expression of the number of months which the apprentice was to serve, reads “ two—ten months.” At the argument, this variance was spoken of, both as an ambiguity and a contradiction. The latter is clearly its proper designation. Although while the two papers are kept separate from each other, as doubtless they were till this suit was brought, each party being governed by the original in his possession, and probably having no knowledge of the variance from it in the other, it produces most, if not all, the usual consequences of a latent ambiguity.
Speaking of it as an ambiguity, then, could parol evidence be properly introduced to explain it, on the ground that it was latent ? It is obvious that this is not the case of the use of one word, which is subsequently found to indicate two different persons or things, and to be equally descriptive of each; nor of the use of two different forms of expression for the purpose of indicating one person or thing, but which in reality point out two, owing to the existence of two subjects, one of which each word or expression exclusively indicates. (2 Starkie on Ev. 558.) The uncertainty here does not arise from the existence of any circumstances extrinsic to the instrument, which render it difficult to tell to which of several persons or things the words used are intended to apply. Nor is it the case to which the familiar rule applies, falsa demonstrate, non nocet. Because neither of these two numbers can be said to be synony
But this variance, instead of being an ambiguity, is a mistake ; and a mistake quite as patent as any ambiguity could be. The words two and ten, as here used, are contradictory and incompatible. It is evident, upon the face of the agreement, that there has been a clerical error—a mistake. That such a mistake can be corrected in equity, there is no doubt. May it not also be shown by way of defense in this action 1 In regard to patents for land, it is the well settled rule in this state, that they cannot be attacked collaterally. Being matters of solemn record, and issued under the great seal of the state, they ought only to be impeached by the well considered judgment of a competent judicial tribunal, in an action instituted for that especial purpose. (Jackson v. Lawton, 10 John. 23. Jackson v. Hart, 12 id. 83.) So, too, it is settled that a mistake in an award cannot be shown by parol; for an award is in the nature of a judgment, “ and nothing extrinsic to that judgment can be offered in evidence to overturn it.” It can only be impeached by the judgment of a court of equity, on a bill filed for that purpose. (Kyd on Awards, 328, 329. Barlow v. Todd, 3 John. 367.) Patents and awards, then, are matters of recot'd, and of greater solemnity than private writings. It has been properly observed that the principle on which evidence is received to explain mistakes, in matters of contract between private persons, does not extend to the admission of evidence to show that a mistake or alteration has been made in records. (2 Starkie on Ev. 557.) The cases above cited, therefore, cannot be considered as authorities, when the question is upon the admissibility of the evidence, as here, to explain a private writing.
There are, it is true, several dicta in the reports of this state, to the effect that courts of common law jurisdiction cannot admit parol evidence to show a mistake. Some of these cases have been expressly overruled, as 1 John. 138, and 7 id. 341, in 14 John. 210, and 16 Wend. 468. In others, the proof was wholly insufficient to show the mistake; as in Jackson v. Croy, (12 John. 427.) In Jackson v. Foster, (12 John. 488,) the proof was that the instrument, though given by design to one person, “was intended for the benefit of” another; no mistake of fact whatever being pretended. In other cases the offer to give parol evidence was made by the plaintiff, and so came within the reasons above cited. Of this class are Patchin v. Pierce, (12 Wend. 61,) and Howes v. Barker, (3 John. 506.) In still
But none of these cases, and no other case which has fallen under my observation, presents the precise point which arises in this one. In all the cases cited, the writings were themselves complete, conveying a distinct idea. The fact that a mistake had occurred was first to be established by parol proof; and then by the same proof it was sought to show its extent and character, and to obtain the benefit of the explanation. All such proof directly contradicts the written instrument. Here, the existence of the mistake is apparent on the very face of the writing. The evidence of it is irresistible. Ho extrinsic proof can add a jot to its force. And the proof offered did not tend to contradict the writing. That contradicted itself. As the written agreement now stands, no tribunal can determine the rights of the parties to it. Every court must see, upon reading it, that though it was intended to be, it is not the actual
In my judgment, the proof should have been received. I can discover no ground of principle for its rejection. And I think I have shown that none of the authorities referred to are in point against its admission; while the authority of Starkie warrants its reception. And without it, there will be a failure of justice ; neither party being able to enforce the rights which the agreement was designed to confer on him. Indeed, I have yet to see a single authority which holds that in a case like the present, where the parol proof is offered by way of defense, not to show the existence of a mistake, but to explain one patent on the record, it is inadmissible. Certainly the case of Bushman’s Lessee v. Stewart, (3 Har. & J. 329,) which was much relied on at the argument, sustains no such proposition. The deed in that, case conveyed “ all that lot or parcel of ground, situate in Baltimore town, and distinguished on the plot of said town, by the Ho. 25, and beginning at a point” &c., giving courses and distances so as to include only one half of lot Ho. 25. It was held that the entire lot passed, though not included in the special description by courses and distances. And parol evidence that it was not the intention to convey the whole lot, but only the part included in the special description, was rejected. The contradiction there, did not exist on the face of the deed, but was raised by extrinsic proof. It seems to have been a case of falsa demonstratio. Two forms of expression were used to describe a single thing, one being correct and one erroneous. Whether the case was rightly decided or not, it has no application here.
Hor do I see any difficulty about the admissibility of the evidence, in this case, arising from the form of the pleadings. The answer sufficiently alleges the existence of the mistake.
This court is now vested with the powers of the former court of chancery. The city court of Brooklyn, in the cases committed to its jurisdiction, of which this action was one, has a civil jurisdiction, extending to matters of equitable cognizance, as well as to those at law. Each court is empowered to grant to the defendant any affirmative relief to which he may be entitled. (Code, § 274.) Each court, on a bill filed to reform the indenture, might have granted such relief, by virtue of its powers as a court of equity. But when reformed, the indenture would probably be of no practical value or use to the master, except as a defense against such an action as the present, by the apprentice.
It is little less than absurd that a court of such powers cannot permit the defendant to shield himself from attack behind such parol evidence as this, while it tells him at the same time that if he will himself become the attacking party and initiate a new litigation, the same court, with no change of power or function, will permit him, upon the same testimony, to show this mistake, and then that result being accomplished, to use it as a defense in the first suit.
The judgment should be reversed, and a new trial granted in the court below, costs to abide the event.
& B. Strong, Birdseye and Emoft, Justices.]