Noble v. Comstock, 3 Conn. 295

Noble v. Comstock

3 Conn. 295 | Conn. | 1820

Hosmer, Ch. J.

There exists no doubt, as to the construction of the contract, on which the plaintiff has founded his!' suit. It is a promise to pay eighty one dollars and ninety cents, whenever that sum shall be collected of the Keel_ er-s. This is unequivocal, explicit, and very different from the one contended for ; that Comstock was to pay the money after he should have received it, and after he should first have applied one hundred and twenty dollars on a demand of his own. The testimony offered by the defendant, was rightly rejected.

In the first place, it would not have proved, that there existed any mistake in the contract, on which the suit was brought. It appears, that Comstock had received the- note of the Keelers as a security for one hundred and twenty dollars due to him; and, on its reception, had entered into an engagement, to which David Noble, jun. refers in his letter, in which he requests him to do “in manner and form as he offered, when they bargained.” Upon the receipt of this letter, the written promise, which shows what the “manner and form” was, was given. It is wot unreasonable to infer, that Comstock agreed to pay the debts of the plaintiff out of the first monies collected; and that this was the matter alluded to.

Secondly, the testimony was not receivable as parcel of the contract, not having existed cotemporaneously, to effect the same object. Montague & al. v. Tidcombe & al. 2 Vern. 518. Treat. Eq. 49. Gillespie v. Moon, 2 Johns. Chan. Rep. 596.

*299Lastly, in a court of law, the supposed mistake was incapable of proof. “ The rule in the courts of law, is, that the written instrument does, in contemplation of law, contain the true agreement of the parties ; and that the writing furnishes better evidence of the sense of the parties than any that can be supplied by parol.” But in equity, relief can be had against ahy deed or contract in writing founded in mistake or fraud, Madd. Chan. 41. and the cases cited ibidem. Moses v. Murgatroyd, 1 Johns. Chan. Rep. 128. Marks v. Pell, 1 Johns. Chan. Rep. 594. Gillespie v. Moon, 2 Johns. Chan. Rep. 585. Lyman v. United Ins. Co. 2 Johns. Chan. Rep. 630.

The other Judgés were of the same opinion, except Brain-ard, J., who was absent.

New trial not to be granted.