By JUDGE COLLIER.
The bill of exceptions very *275naturally suggests for our consideration these questions 1st. Is it competent to vary a contract in writing, by verbal agreement, made at the time the contract is entered into, and is such the effect of the testimony, with regard to the indulgence of the obligor? 2nd. Is assumpsit the proper remedy against the assignor of a specialty on an indorsement under seal? 3d. Can the copy of a registered deed of conveyance, be read in evidence, without accounting for the original?
1st. Where parties have reduced their contract to writing, it is presumed that it contains every stipulation in regard to the subject matter of contract, in which their minds concurred; and hence neither party will be permitted to prove verbal reservations or conditions to haye been made at the time it was entered into. In Dupuy v. Gray, the plaintiff in error was sued as the assignor of a bond. On trial in the Court below, he offered to prove a verbal agreement, made at the time of the assignment, that he was not to be liable until it should be ascertained by suit, that the money could not be ‘collected of the obligor, which evidence was rejected by the Circuit Court, and this Court ruled, that such evidence went to vary and control the terms and legal effect of the contract in writing, and its rejection was proper. To the same point is Wesson v. Carroll.
In Free and another v. Hawkins, the indorsee brought an action against the indorser. The defence set up, was a want of notice of the dishonor of the note; whereupon the plaintiffs tendered asa waiver of such notice by the defendant, evidence that he knew and expected that payment of the note was not to be enforced, until after the estates of the maker were sold, and then only in the event of the proceeds of the estates not being sufficiently productive; and that whatever might be the course of law, such was the understanding when the note was given. The evidence was rejected at nisi prizes; On a rule nisi, to set aside the nonsuit and have a new trial, the Court of Common Pleas held, that the evidence was properly rejected; and remarked, that if the parties mean to vary the legal operation of an instrument, they ought to express such variance; if the)' do not express it, the legal operation of .the instrument remains. The effect of the evidence tendered, would be to vary the note and to control its legal operation. ' The case of Hoare v. Graham, was referred-^ to by tlie Court, as analogous in principle, to the one be - *276them, and as deciding that that which is expressed in writing, and which is the best evidence of a contract, should alone constitute the contract. In Hunt v. Adams, evidence was offered, to shew that at the time the note was signed by Adams as security, it was agreed between him anc* the plaintiff’s intestate, that he should not be called upon, until an attempt had first been made to obtain payment of Chaplin, the principal in the note. This evidence was held to have been rightfully rejected by the judge vvho tried the cause; and it was ruled, that parol evidence cannot be admitted, to alter the legal effect of a written simple contract. To the same effect are the cases of Preston v. Lerceau and Coker v. Grey. In Stackpole v. Arnold, it is decided, that there is no difference with regard to the admissibility of explanatory or contradictory proofs, between simple contracts in writing and sealed instruments.
If these decisions are to be relied on as correctly ascertaining the law, it does not require the aid of further illustration to manifest, that the opinion of the Court below, by which oral evidence of an extension of the time of payment was admitted, is erroneous. And the question is so clearly determined by these authorities, that I do not feel authorized to dissent from them, the more especially as my researches furnish no opposing adjudication.
Had the point been res integra, without any other light than principle to guide, I should have hesitated before I determined that oral evidence of a fact, concomitant with the indorsement, was not admissible, by way of excuse for a failure to give notice of the dishonor of a note. Though I have no objection to the principle of the rule which excludes such testimony, I believe its application to have, been extended full as far, as the purposes of justice demand. But the question has been settled and I acquiesce, believing it is more important in most eases, to the security of rights, that the law should be fixed and certain, than that it should be correctly established. If it had appeared from the declaration that the agreement for indulgence was verbally made, advantage should have beep claimed on demurrer, but it does not appear from the declaration, that the agreement was not in writing.
2d. The action of assumpsit is not maintainable upon writings under seal, where they are sued on as the four»- # dation of the action, but in such case, the party must bring debt or covenant, according to the character of the writing.
*277In order to determine what action is the remedy upon the assignment, it is necessary to inquire into the nature of the obligation it imposes. The assignor undertakes with the assignee, that if he will employ due diligence to get the money of the maker and fail, then if he will give a reasonable notice of the failure, he will pay him. It is obvious that the assignment imposed no present duty upon the assignor, but is only an act from which he may become liable, upon the performance of after acls by the assignee, and can be considered as but inducement to his liability.
In Deeborough v. Vanness, the Supreme Court of New Jersey decided, that a demand and notice, or something equivalent, are the corner stones of the indorser’s right of recovery. In Dwight v. Emerson, the law is declared in equivalent language, and so are all the author-itics.
In Brickell v. Batchelor, it was held, that covenant would not lie on an assignment under seal of a bond for tobacco, the breach assigned being that the obligor did not pay. The opinion of the Court.is a brief declaration, that covenant will not lie, without even suggesting the proper remedy. It is clear that debt will not lie in such case, for the obligation of the assignor “is collateral and not absolute,” Whiting v. King. Assumpsit then being the only remaining action for the enforcement of contracts, must be the legal remedy, or else the party would be rem-ediless at law, which cannot be.
In Baird & Briggs v. Blaigrove's executor, the Court of Appeals of Virginia ruled, that where a sealed instrument is inducement to the action, and not the foundation of it, assumpsit may be maintained upon the parol liability''. The contractof assignment shews that the ground of action is the employment of due diligence to get the money of the maker, and a reasonable notice of the failure to the assignor; to these the assignment is but inducement: hence I am of opinion that the action is not misconceived.
3d. The ancient and well settled rule, which requires the production of the best evidence to prove a fact, of ■which it is susceptible, would render inadmissible the copy of a deed, where the original is extant, and within the reach of the party offering the copy. Its admission could only be legalized by statute. By the 1st section of the act of the 4th March, 1S03, entitled “an act respecting conveyances,” it is enacted, that every deed or convey-*278acknowledged or proved, and certified pursuant to the provisions of that act, shall be received in evidence in Court of the territory, as if the same were then and there produced and proved. This section only provides for the admission of the original deed as evidence, without requiring proof of its execution, b)' testimony taken in the usual manner, by deposition or the oral examination of witnesses.
The 13th section of the same act, enacts that if the original deed or conveyance be lost or mislaid, or be destroyed by time or accident, and is not in the power of the party to produce it, the record thereof, and the transcript of such deed or conveyance, certified to be a true transcript by the clerk, in whose office the record is kept, shall be received in evidence in any Court of the territory. This provision can only be viewed as declaratory of the common law, and not introductive of a new principle in the rules of evidence; for it has always been understood, that where it is not practicable to produce evidence of the first grade, that which is of a secondai’y character in the ascertainment of truth, is admissible.
In the case before us, the defendants in error did not bring themselves within the operation of the act. It. is' not pretended but that the original deed is in existence, and for any thing appearing to the contrary, it may have been within the defendant’s possession.
But it is argued, that the fact of the sale and conveyance of the land described in the deed, was not put directly in issue, but was only a collateral and incidental inquiry; and therefore it was competent to prove the fact, by evidence of a secondary grade. Without controverting the position that facts drawn collaterally in question ,need not generally be proved, according to the strict rules of evidence, it may be assumed that the pleadings brought directly before the Court, an inquiry into the sale and conveyance of lands. The third count in the declaration, seeks to charge the defendant below upon a promise, fur which the sale and conveyance of lands was the only consideration. The insertion of this count was perhaps unnecessary, and a recovery might have been had, if at all, upon the other counts, which charged the defendant below upon his indorsement, but as an issue was made up on it, to sustain that issue, it was material to prove a sale and conveyance of lands as alleged, and this too by the best evidence which could be adduced. Hence it follows, that a copy of the deed could *279not have been read, without accounting for the absence the original. And for its admission, as well as the admission of proof of a verbal agreement, extending the time of payment, I am of opinion that the judgment should be reversed and the cause remanded. But a majority of the Court being of opinion that the action is misconceived, and should have been covenant, the judgment is reversed.
Judgment reversed.
Judge Taylor, not sitting.
7 Mass. R. 518.
2 W. Black. 1249. 2 Bos. and Pul. 565.
11 Mass. 27" court="Mass." date_filed="1814-03-15" href="https://app.midpage.ai/document/stackpole-v-arnold-6404123?utm_source=webapp" opinion_id="6404123">11 Mass. R. 27.
3 Hals. R. 231.
2 N. H.Rep. 159.
C. & N. 109 N. Carolina Rep.
Minor's Ala. Rep. 122.