11 Vt. 146 | Vt. | 1839
The opinion of the court was delivered by
When this cause was before us, at the last term, it was decided, that if this note was given for the debt due Almira or Melissa Loop, or their legal representatives, it was without consideration, and uncollectable, as it was received by the plaintiff under a claim of right, when, in fact, as the administrator of Augustus, he liad no legal right, and was an entire stranger, and could give no legal discharge.— 10 Vt. R. 181. On the new trial, it appears that a writing or receipt was produced, signed by the plaintiff,purporting to state for what consideration he received this note, and including a receipt in full for the consideration. The defendant offered to prove, by parol, that, in fact, the whole amount, for which the note was given, was due on the debts of Almira and Melissa, and this was rejected by the court. It is undoubtedly true, that aman is not permitted to add to, vary, or contradict, by parol,-his written contract, but that rule cannot be applied to this case. This writing is no contract, and is not signed by the defendant. It is a concession of facts by the plaintiff, which can never be conclusive on the defendant; and it is a receipt which any one, even the signer, may vary or contradict, by parol. Neither is it very obvious that the testimony offered would contradict this receipt. The receipt, indeed, purports that three claims were settled and the note given for a balance. That is not contradicted by showing that one of those claims had been specifically paid in full beforehand that the balance was all due on the others. The testimony offered by the defendant should have been admitted.
Judgment reversed.