12 Mich. 289 | Mich. | 1864
We think the Court below erred in holding the written instrument in question conclusive of the ternas and conditions of the sale, and in excluding from the jury the verbal evidence tending to show that the property was not to be delivered till paid for in the manner verbally agreed upon at the time of the sale.
The written instrument was rather a bill of parcels than a bill of sale — little if anything more in substance than a receipt for the price, and subject to the same rules as to the admission of verbal evidence to vary, contradict or explain it. It does not of itself purport to be a conveyance or contract, but is more in the nature of a mere acknowledgment of facts which had already occurred without its aid. It was therefore as much open to contradiction or explanation by verbal testimony, as if the same facts had been proved by verbal testimony:— Tobey v. Barber, 5 Johns. 68; Southwick v. Hayden, 7 Cow. 334; Blood v. Harrington, 8 Pick. 552; Dunn v. Hewitt, 2 Denio, 637; 1 Phil. Ev. by Cowen, Hill and Edwards, p. 587, note 171; Ibid. vol. 2 p. 672, note 494.
In Hazard v. Boring, 10 Cush. 267, the bill of parcels was precisely the same, both in form and substance, as that in the present case. The plaintiffs offered verbal-evidence to prove that the transfer was a pledge and not
In this view of the law, we entirely concur. We think, therefore, the Court should have permitted the jury to take into consideration all the evidence tending to show the real nature of the whole transaction. The judgment must be reversed, with costs, and a new trial granted.
