Treadwell v. Himmelmann

50 Cal. 9 | Cal. | 1875

By the Court, Crockett, J.:

The evidence offered by the defendant in support of the special defense set up in the answer was improperly excluded. It did not contradict or vary the written instrument declared upon; on the contrary, the offer was to prove an executed parol agreement, in the nature of an accord and satisfaction. There is no difference in principle between this case and Hapgood v. Swords (2 Bailey S. C. 305), which was an action on a promissory note; and the defense was that at the time of the execution of the note it was agreed by parol that if the defendant would procure a purchaser for certain land of the plaintiff at a specified price, the plaintiff would surrender the note; and the defendant procured the purchaser at the stipulated sum. The court, while admitting that a written contract cannot be contradicted or varied by parol, says: “The legal effect of this verbal agreement is, that when the defendant has performed his part of it, it shall be regarded as a payment. The note is the value put by the plaintiff upon the defendant’s services in procuring a purchaser of the land at a given sum.” This reasoning applies fully to the present case; and other authorities to the same effect are not wanting. (Cowen & Hill’s Notes to Phil. Ev., note 945; Bradley v. Bentley, 8 Vt. 243; 5 Vt. 514; 17 Pick. 171-4; 3 Fairf. 444.)

Judgment reversed and cause remanded for a new trial. Bemittitur forthwith.

Neither Mr. Chief Justice Wallace nor Mr. Justice Bhodes expressed an opinion.