Waddell v. Glassell

18 Ala. 561 | Ala. | 1851

PARSONS, J.

The contract on which this suit was brought was between a lessor and his lessee. The premises leased were in Sumter county, and the contract was made and to be performed in the county, without reference to any mercantile or ■other usage or custom, except as stated hereafter. The only part of the contract which is material to be noticed, is the stipulation of the defendant, who was the lessee, to deliver to the plaintiff, who was the lessor, forty bales of cotton. The contract was made in March 1841, and the defendant at that time took possession under it. By the contract that was actually made, the defendant was to deliver to the plaintiff forty bales of cotton of an average quality. The plaintiff’s letter and the evidence of Brown prove that this was their contract. The contract was not attempted to be reduced to writing, and signed by the parties, until the 30th day of April 1841. As written, it was for forty bales of good fair cotton. In the court below the defence was that, the words good fair cotton, instead of cotton of the average quality, were inserted in the contract as written, by fraud on the part of the plaintiff. ■

The general rule is that parol evidence is not admissible to add to, vary or explain a written instrument, but if a material part has been inserted by the fraud of one of the parties, this may be proved at law by parol evidence. — Paysant v. Ware & Barringer et al., 1 Ala. 160. It is also clear that written evidence, such as the plaintiff’s letter tending to prove the fraud, is admissible. As the letter showed what the contract was, and as the contract as written varied from it, the letter was evidence upon the question of fraud, though not conclusive, nor of itself sufficient. The plaintiff also objected to the evidence of Mr. Desha, but it was admitted. Pie proved that the plaintiff, after die contract was made, but before it was reduced to writing, learned from him, the witness, that good fair cotton, according to the Mobile classification, was superior to the average quality, and the plain inference from what the plaintiff said at that time is, that he then determined to prepare the written contract for the delivery of good fair cotton, and a part of what he said would authorise the inference that he did not intend to inform the defendant of the effect of the words good fair, and that he supposed him to be ignorant of it. The contract, as written, was for the delivery of good fair cotton, but there was no other evidence that the defendant did not consent to modify his contract, so as to agree with what was written and signed. If it be conceded, therefore, that the contract, as written, could not be aided by parol evidence of the Mobile classification, so as to make it a contract having the effect which the plaintiff intended, still the evidence was admissible, because it proved the plantiff’s motives and intention, and they were evidence tending to prove, what was material, that the defendant did not intend to change or modify his contract, but that, on the contrary, he was led into the execution of the contract, as written, by fraud on the part of the plaintiff. For I think the effect of the words good fair was materially different from the word average in this contract, whether the Mobile classification could be proved in aid of the contract as written and for the purpose of giving it effect, or not. To my understanding the words “good fair” and average, in their primary signification, are not precisely the same, but that the quality indicated by the former is a shade above what the latter describes. The plaintiff, therefore, accomplished something that was material, with regard to the effect of the contract as written, and as the evidence tended to prove that this was done fraudulently, it was admissible.

Whether parol evidence of the Mobile classification is admis-. sible in the case of a written contract for the payment or delivery of cotton, made and to be performed in the county, and having on its face no reference to that classification, or no other reference than the words “good fair,” is a very important question, but it is not necessary now to decide it.

The judgment is affirmed.