13 Gratt. 705 | Va. | 1857
It was said by the court in the Countess of Rutland's Case, 5 Coke’s R. 25, “ that it would be inconvenient that matters in writing, made by advice and on consideration, and which finally import the certain truth and agreement of the parties, should be controlled by an averment of parties, to be proved by the uncertain testimony of slippery memory.” In Stevens v. Cooper, 1 John. Ch. R. 425, Chancellor Kent remarks, “ that there is no rule of evidence better settled than that which declares that parol evidence is inadmissible to contradict or substantially vary the legal import of a written agreement. Such testimony is not only contrary to the statute of frauds, but to the maxims of the common law; and the rules of evidence on this as on most other points, are the same in courts of law and of equity.” See Fell v. Chamberlain, 2 Dick. R. 484; Woollam v. Hearn, 7 Ves. R. 211; Jordan v. Sawkins, 3 Bro. C. C. 388. In Crawford v. Jarrett, 2 Leigh 630, Green, J. states the rule in these words: “Parol evidence cannot be admitted (unless in case of fraud or mistake) to vary, contradict, add to or explain the terms of a written agreement, by proving that the agreement of the parties was different from what it appears by the writing to have been.” In Watson v. Hurt, 6 Gratt. 633, 644, Judge Baldwin announces the rule in the following terms: “It is perfectly well settled that the terms of a written con
Thus, in Crawford v. Jarrett, 2 Leigh 630, it was held that in cases of equivocal written instruments, the circumstances under which they were made may be let in to explain their meaning; and in that case parol evidence of the time and manner of the execution and delivery of the written promise was admitted to show, that a party who had signed but whose name was not in the body of the instrument, was jointly bound with those named. There no new words were added to the instrument. The proof was consistent with the terms of the instrument, and the only effect of the oral evidence was to enable the court to read the writing by the light of surrounding circumstances, that it might ascertain the meaning of the parties.
So in Wigglesworth v. Dallison, Doug. R. 201, it
So with reference to commercial transactions, proof of usage is admitted either to interpret the meaning of the language of the contract, or to ascertain its extent, in the absence of express stipulations, or where the language is obscure. As where a promissory notéis payable with grace, evidence of the established and known usage of the bank where it is payable, is admissible to show on what day the grace expired. Renner v. Bank of Columbia, 9 Wheat. R. 581. Oral evidence is also admitted to prove that a person who signed as principal was in reality an agent, when offered for the purpose of charging the principal with the contract: Upon the ground we are told in 2 Smith’s Leading Cases 307, of assimilating this case of a dormant principal, to that of a dormant partner. The latter is liable on the ground of agency, and if they trade under the name of A, that name when used in a contract relating to such trade, comprehends both. And if one may contract jointly with another in the name of that other, he may contract individually in the same way; and parol evidence is admis
So where oral evidence is admitted to show in an action on a promissory note acknowledged to be for value received, a want of consideration for the promise, or that the instrument was void by reason of fraud or illegality, these may bé proved as distinct independent facts collateral to the contract, but not tending to vary or contradict the terms of it. Nor, as it seems, does the rule apply where the contract was reciprocal, and the part applicable to one party only has been reduced to writing. Of this class was the case of Brent v. Richards, 2 G-ratt. 539. That was a parol contract for the sale of a slave at a reduced price, with a condition if the purchaser desired to sell, the seller should have him at the price he received. The vendor executed a bill of sale which was silent as to the condition to repurchase. The purchaser afterwards sold to a stranger at a higher price. In a suit by the seller against the purchaser this court held, that the deed was not an estoppel in evidence of any matter not inconsistent with and contradictory of it. That the deed was merely the execution of the contract on the part of the vendor, and put the property in the condition in which the contract sued on began to operate.
So oral evidence of a subsequent contract varying the terms of a previous contract on a new consideration, or of a discharge thereof, does not contradict or change the terms of the contract, but establishes independent facts, to avoid the effect of it.
And so in the cases relied on where a court of equity is called upon to exercise its peculiar jurisdiction, by decreeing a specific performance, the party to be charged is permitted to show by oral testimony, that under the circumstances the plaintiff is not entitled to
And so with respect to such evidence to prove an attempt to convert info an absolute sale that which was intended as a security for a loan; it is the fraudulent attempt of the grantee, and perhaps on the ground of a resulting trust in favor of the grantor, that such evidence is received.
It is reasoning in a circle, to argue that fraud is made out, when it is shown by oral testimony that the obligee cotemporaneously with the execution of a bond, promised not to enforce it. Such a principle would nullify the rule: for conceding that such an agreement is proved, or any other contradicting the written instrument, the party seeking to enforce the written agreement according to its terms, would always be guilty of fraud. The true question is, Was there any such agreement? And this can only be established by legitimate testimony. For- reasons founded in wisdom and to prevent frauds and perjuries, the rule of the common law excludes such oral testimony of the alleged agreement; and as it cannot be proved by legal evidence, the agreement' itself in legal contemplation, cannot be regarded as existing in fact. Neither a court of law or of equity can act upon the hypothesis of fraud where there is no legal proof of it. Thus although for the reasons given, parol evidence that a person who signed as principal was in truth an agent, is admissible when offered for the purpose of charging the principal with the contract ; such evidence can never be received for the purpose of exonerating an agent who has entered into a written contract in which he appears as principal; for such evidence would alter the written contract. Higgins v. Senior, 8 Mees. & Welsb. 834; Hunt v. Adams, 7 Mass. R. 518; Stackpole v. Arnold, 11 Mass. R. 27. Numerous examples of the cases in which
Cases have been cited from 5th and 14th Sergeant and Rawle’s Reports, establishing a different principle, as it has been argued, and they have been much relied upon. An examination of the cases satisfies me that the court did not intend to come in conflict with the general rule, which was expressly recognized, but sup
In the case of Heagy v. Umberger, 10 Serg. & Rawle 389, the opinion was delivered by the same learned judge who-delivered the opinion of the court in Hill v. Ely. It was an action against the assignor for the
In the case of Lyon v. Huntingdon Bank, 14 Serg. & Rawle 283, the bank agreed to loan upon the credit solely of certain bonds, but in compliance with the rules of the bank required a note with an endorser for form sake to be put in, and assured the party that the note was a mere matter of form without responsibility on the signers. Tilghman, Ch. J. said that where there is an agreement in writing, parol evidence of the same agreement is inadmissible, but the evidence offered did not fall within the rule. It was not pretended that any thing was wrong in the note or that any alteration whatever should be made in it, In point of fact it was never executed and made as an effective operative security, to bind the parties. It was a matter of form required by the officers to show a compliance on their part with the rules of the bank, and it was a fraud to attempt to set it up as a valid security. It was evidence of independent facts to avoid the effect of what,purported to be a valid security, but not to contradict or vary the terms of it. How far the distinction taken was well founded might be a question; the case was de
With this view of some of the authorities in regard to the application of the rule of evidence, it remains to enquire whether by the case as made by the bill the appellee seeks relief by oral evidence of an agreement additional to, but consistent with, the terms of the written agreement, or by proof of fraud in the procurement thereof, or of a breach of confidence in perverting what was delivered conditionally or diverso intuitu, and using it as a valid instrument; or by proof of any mistake or omission and a fraudulent attempt to take advantage thereof.
The bill alleges the recovery of a judgment by the appellant against the appellee’s testator Edward Lucas, in the Circuit court of Jefferson county on three single bills executed by George Reynolds, Jacob W. Reynolds, J. McMurran, C. Billmyer and the said Lucas. That these papers were given for a previous debt due by the two Reynoldses the principals, and that before they were signed, it was understood and agreed between the two principals and their three friends McMurran, Billmyer and Lucas, that all were to sign or none would be bound. That subsequently the said notes were prepared by J. W. Reynolds, and after they were signed by G. Reynolds, J. W. Reynolds, McMurran and Billmyer, and before their delivery to the appellant, they were presented to the appellee’s testator, who refused to sign them, in consequence of consultation with his friends, and learning the extent of his previous liabilities for said Reynolds greatly exceeding those of the other parties. That nevertheless the appellant contrived to get possession of the bonds, without thesignature-of the appellee’s testator, and applied himself to the appellee’s testator for his signature, who again and repeatedly refused to sign the bond until
The bill further avers that as the bonds became due the appellant put them in suit, and that still relying on the appellant’s promise, no plea was put in by the appellee’s testator, and judgment went against him by default. That the principals were bankrupt, and that the other defendants McMurran and Billmyer put in pleas of non est factum, and were discharged.
It is further averred in the bill that after the suit was brought upon the first bond, the appellee’s testator applied to the appellant for the indemnity he had promised as the condition of his signing, and the appellant advised him to keep quiet and wait a while; that afterwards he called again in company with his son, and demanded the promised indemnity, and was assured by the appellant that he would fulfill his promise, but that he would not commit himself, and that
To this bill the appellant demurred. The rule of evidence which excludes parol evidence tending to vary or contradict the terms of a written agreement is the same in equity as at common law. And the question is presented whether parol evidence tending to prove the oral contract set up in the bill would not vary or contradict the bonds executed by the obligor. No fraud is alleged in the procurement of the bonds; it is not averred 'that the appellant was apprised of the alleged understanding and agreement that all were to sign or none; the consideration of the bonds was a previous debt, and it is not pretended that they were not executed and delivered as valid securities.
What does the bond import? That the obligor binds himself to pay the money at a certain day j and the law, with reference to which the parties contracted, declares that he may be compelled to pay. If the bond or writing contained on its face and as part of the instrument a clause providing that payment should never be demanded or enforced, such stipulation would go to the whole obligation, and it would possess no validity. Without a provision of that kind, it is an obligation to pay which the obligee could enforce; with such a stipulation it is utterly worthless. The writing is but evidence of the agreement, and if it can be established and set up by oral evidence, the agreement when once proved must have the same effect. It shows that that which from the face of the instrument would appear to have been intended as a valid security, was. by an agreement cotemporaneous with its execution, designed to be of no
The case cannot be brought under any head of fraud, except by proof of the cotemporaneous agreement inconsistent with the written instrument; and, for the reasons already given, no proof of that kind can legitimately be received. No such agreement in legal contemplation exists, and no fraud can be imputed to the obligee for insisting on the terms of his bond. If it be averred, that although a note is on its face payable on demand and unconditionally, there was a cotemporaneous oral agreement, that the time for payment, should be postponed, or required only upon the happening of a certain contingency, parol evidence of such an agreement is inadmissible. Mosely v. Hanford, 21 Eng. C. L. R. 156; Free v. Hawkins, 8 Taunt. R. 92 ; Hanson's trustees v. Stetson, 5 Pick. R. 506; Spring v. Lovett, 11 Pick. R. 417 ; Watson v. Hurt, 6 Gratt. 633. Yet it might be argued with the same force, that this oral agreement may have induced the party to sign the note, and that it is a gross fraud to attempt to enforce it according to its terms. And so it would be if the existence of the agreement could be judicially established. But there being no legal proof of it, there is nothing of which fraud can be affirmed. The rule is founded in wisdom, and a different principle would weaken confidence in all securities for debts. Matters in writing, instead of finally importing the certain truth and agreement of the parties, would be a snare and delusion. The party relying on an instrument in writing as the final result in which all previous negotiations have centred, would be met and “ controlled by an averment to be proved by the uncertain testimony of slippery memory.” The principle of the de
I think the decree should be reversed, and a decree entered dismissing the bill.
The other judges concurred in tlie opinion of Allen, P.
Decree reversed.
Note by the Judge. — In Russell v. Southard 8? ais. 12 How. U. S. E. 139, the question was, Whether the deed was a mortgage or conditional sale 1
Curtis, J. delivered the opinion of the court. “ It is insisted on behalf of the defendants, that this question is to be determined by inspection of the written papers alone, oral evidence not being admissible to contradict, vary or add to their contents. But we have no doubt extraneous evidence is admissible to inform the court of every material fact known to the parties when the deed and memorandum were executed. This is clear both upon principle and authority. To insist on what was really a mortgage, as a sale, is in equity a fraud, which cannot be successfully practiced under the shelter of any written papers, however precise and complete they may appear to be.” He refers to Conway v. Alexander, 7 Cranch 238. Then he says, “ And in Nixon v. Rose, 1 How. U. S. R. 126, it is stated, the charge against Nixon is, substantially, a fraudulent attempt to convert that into an absolute sale which was originally meant to be a security for a loan. It is in this view of the case that the evidence is admitted to ascertain the truth of the transaction, though the deed be absolute on its face.”
“These views are supported by many authorities.” And he cites a number.
After stating that if the courts of Kentucky had decided differently, the Supreme court w’ould not be controlled by them, he proceeds: “ But we do not perceive that the rule held in Kentucky differs from that above laid down. That rule, as stated in Thomas v. McCormack, 9 Dana 109, is that oral evidence is not admissible in opposition to the legal import of the deed and the positive denial in the answer, unless a foundation for such evidence had been first laid by an allegation and some proof of fraud or mistake in the execution of the conveyance, or some vice in the consideration.
“ But (the judge continues) the enquiry still remains what amounts
The opinion of the court in the case referred to from Kentucky, of Thomas v. McCormack, is free from doubt as to what was meant by the phrase “of the allegation and proof of fraud or mistake in the execution of the conveyance or vice in the consideration.” In a subsequent paragraph, the chief justice says, “ In this case there is neither allegation nor proof of either fraud or mistake in the execution of the deed, nor is there any suggestion of an illegal or immoral consideration. On the contrary, there can be no doubt the grantor intended the deed to be absolute on its face when he signed it; and that the grantee was guilty of no fraud in procuring such a deed; and that the consideration for it was valuable and legal.” Thus showing the fraud referred to. was fraud in the procurement or execution of the deed, or the consideration was vicious because immoral or illegal; and therefore such proof was not in opposition to the legal import of the deed, but on the contrary was proof of a matter collateral to it and impairing its validity as a deed. In Floyd, v. Harrison, 2 Bob. B. 161, 175, the question was alluded to by Judge Baldwin, who remarked in substance, that such extrinsic evidence may be received when it may be fairly referred to fraud, accident or mistake. But he does not say distinctly whether the fraud should relate to the execution of the deed; or whether it could be established by evidence of a cotemporaneous oral agreement varying the import of a valid instrument which the party knew to be an absolute deed when he executed it. The illustrations which he gives relate chiefly to the execution of the instrument.