123 A. 224 | N.H. | 1923
The so-called parol evidence rule, treating a writing which sets out an agreement of parties as their contract, though often spoken of and dealt with as a rule of evidence, is in reality one of substantive law. It determines "where and in what sources and materials are to be found the terms of a jural act." 5 Wig. Ev., s. 2425. "When a jural act is embodied in a single memorial, all other utterances of the parties on that topic are legally immaterial for the purpose of determining what are the terms of their act." Ib. This is not because it is a writing, but because the parties intended to make it their whole act. If the preliminary negotiations are in writing, they are no more admissible than if made by word of mouth. If the final and complete act be oral, it is equally entitled to be treated as the exclusive expression of the mutual agreement. The difficulty in applying the rule in practice has arisen largely from not keeping in mind these fundamental limitations, especially that the integrated act is exclusive only so far as the parties intended it to be so. "This intent must be sought where always intent must be sought, namely, in the conduct and language of the parties and the surrounding circumstances. The document alone will not suffice. What it was intended to cover cannot be known till we know what there was to cover." 5 Wig. Ev., s. 2430.
The writing now in question is both a receipt and a release. In the former aspect it is merely an admission and not conclusive upon the parties. As to the latter phase it is conclusive. The parties having elected to reduce to a writing their final agreement, the *154 theory of the law is that such writing is not merely evidence but is the contract itself.
It is not necessary to now consider the extent to which such a contract may be varied or contradicted (5 Wig. Ev., s. 2431), for what the defendant offered to show was not in any true sense a contradiction or variation of the contractual part of the document. True it is that it differed from the writing, but it does not necessarily follow that it in any way affected the terms thereof. The error in many of the cases lies in the failure to distinguish between denying the terms of the writing and showing that other agreements, not intended by the parties to be covered by the writing, were made at the same time.
The execution and validity of the writing being admitted, neither party could deny in this suit that the plaintiff gave and the defendant accepted a release of the plaintiff's claim for past damage. That was their written contract. In the same writing was the statement that the consideration for the release was the payment of six hundred dollars. It is familiar law that this statement could be falsified. Ryan v. Rand,
The defendant offered to show the latter state of facts. It had already appeared in the case, by the plaintiff's own testimony, that at the time the writing was executed there was a further agreement between the parties as to the construction by the defendant of certain walls and drains. The plaintiff's claim was that such construction was to be a satisfaction of future damages in case it prevented further injury from flowage. The defendant proposed to show that the plaintiff agreed to accept what it paid and promised to do as satisfaction of all future damage from flowage. The defendant's offered proof of this additional agreement, resting in part upon the money payment as a consideration, did not in any way *155 deny any of the terms of the release. It was merely a part of their agreement which they did not elect to integrate in the writing. Proof of such an additional oral agreement has always been permitted in this state. Quimby v. Stebbins, supra; Hutt v. Hickey, supra; Day v. Washburn, supra; Webber v. Loranger, supra.
The plaintiff relies upon Goodwin v. Goodwin,
It has been suggested (Cass v. Brown,
The plaintiff also claims that the ruling excluding the evidence can be sustained upon the ground that the offer of proof was an attempt to set up a defence not before suggested, and that could not be made at that stage of the proceedings. Martel v. White Mills,
The proffered evidence should have been received and considered as tending to show an agreement of the parties additional to that stated in the writing. Error having been committed in the exclusion of the evidence, the question arises whether the verdict should be set aside.
What the defendant offered to show was an oral agreement for an interest in land. As stated by the presiding justice, the defendant claimed an agreement that fixed the rights of the parties for all time and for all purposes. The future flowing, contemplated and paid for if the alleged agreement was made, would take from the plaintiff a part of her title to her real estate. Eaton v. Railroad,
The evidence from both parties was that the plaintiff began to make complaints and demands for reparation very soon after the transaction in question. This was notice that the plaintiff denied that the defendant had any right in the premises, and was a sufficient revocation of the license, if one existed. Carleton v. Redington,
Whether the consideration alleged to have been given for future rights could have been recovered as a set-off or under a plea of recoupment, or whether it can hereafter be recovered in another suit, are questions not now presented and upon which no opinion is expressed.
The other exceptions have not been argued and are understood to be waived.
Case discharged.
All concurred. *157