Sweet v. Stevens

Bullock, J. The only question in this case is, whether the parol testimony, offered by the defendant in bar of the plaintiff’s action, is admissible under the rules of evidence. No'oral declarations or agreements, made between the parties to a written contract, are admissible, to contradict or vary the terms of such contract. The law presumes the written engagement to be the contract of the parties, and to embrace all the terms and stipulations deemed material by either at the time of' its execution. And hence the whole current of authorities is, that in an' action upon a note, check, or bill of. exchange, for the payment of money absolutely, and, which has been fully executed and delivered by the original parties thereto, it is not competent to show by parol, that such note, check, or bill of exchange was not to be paid except upon a contingency which has not happened, *380 or upon a condition which has not been performed. Rawson v. Walker, 1 Starkie’s Rep. 361; Free v. Hawkins, 8 Taunt. 92; Hoare v. Graham, 3 Campb. 57; Mosely v. Hanford, 10 B. & C. 729, (21 Eng., C. L.); Woodbridge v. Spooner, 1 Chit. Rep. 661, (18 E. C. L. 195); Foster v. Jolly, 1 Crompt. Mees. & Rosc. 708; Adams v. Wordley, 1 Mees, & Welsb. 374; Rose v. Leonard, 14 Mass. 153; Lapham v. Whipple, 8 Met. 59; St Louis Perp. Ins. Co. v. Homer, 9 Met. 39; Underwood v. Simonds, 12 Met. 275; Adam’s administrator v. Wilson, Ib. 138; Hanchet v. Birge, Ib. 545. In Brigham v. Rogers, 17 Mass. 574, this rule excluded evidence, offered by the tenant, ,to show that the landlord, at and before the execution of the lease, orally agreed to make certain repairs ; and in Billings v. Billings, 10 Cush. 178, that a note was intended to operate as a receipt. The mode of preserving the condition or defeasance is, to incorporate it into the written contract, or to cause the writing to be executed and delivered in escrow. Free v. Hawkins and Foster v. Jolly, before cited. If, therefore, the check sued upon has taken effect by an actual, absolute, and legal delivery to the plaintiff, so that the defendant had no right to recall it, and being in terms payable without condition, oral testimony is offered to show that it was to be paid upon conditions, such evidence varies the terms of the written instrument, and is clearly inadmissible. It is, however, competent to show by parol the circumstances under which the written contract was made, as that it was in pursuance of some general purpose, and what that purpose was. 3 Starkie on Evd. 1047, 1048. And so" in Hubbard v. Barker, executrix, 1 Allen, 99, which was a suit by a grandchild against her grandmother’s executrix, to recoven a note given to the child by the testatrix, the plaintiff was permitted to show, by parol, the manner or plan by which the testatrix distributed her estate, and that the note was given in pursuance of, and as a part of, such plan. The question here is not a question touching the consideration of a check, a want or failure of which, between the original parties, may be shown; neither is it, upon the facts stated, a question, whether parol evidence may be offered to vary or change *381 an absolute written promise into a conditional one; but, rather, whether it is competent' to show, by parol, that such written promise grew out of an oral agreement or negotiation, which agreement was inchoate and unexecuted in fact by either party, and by the express terms of which the written instrument was not to bé regarded as obligatory, but its operation and efficacy suspended until the happening of an event then in futwro. In such a case, the rule which presumes the written instrument to embody the entire contract and all its stipulations, does not apply.' The oral evidence is offered, not to contradict or vary the written, but admitting, seeks to avoid it by showing that, as an entire and independent agreement, it has no present legal effect. 3 Starkie on Evd. 1049. And hence, while in Brigham v. Rogers, supra, parol evidence, to show that the landlord agreed to make repairs not stipulated for in the ^ease^ was rejected, in Davis v. Jones et al. 17 C. B. 625, (84 Eng. C. L. 625, 633, 634,) it was admitted, to show that the written agreement was not to take effect, but was to remain inoperative, and no rent was to accrue until certain repairs were made. An agreement, although reduced to writing and signed, is not necessarily operative from its apparent delivery, evqn if there be nothing upon its face to- show that its operation is suspended. Its actual and complete delivery, in intent, may be made to depend upon some event thereafter to happen. In the meanwhile, the agreement may rest formally in escrow, in the hands of a third person, or it may be delivered to the party himself in the nature of an escrow, the intervention of a third person not being absolutely necessary to make the transfer, in effect, conditional. Marston v. Allen, 8 Mees. & Welsb. 494. In Simontons v. Steele, 1 Ala. 357, the defendant offered to show that the consideration of the note sued upon was the transfer to him of two notes and an account,'due from one Ellege, whom the defendant owed; and that when he gave the note sued upon, the plaintiffs agreed that if he coulcknot use the Ellege notes and account in set-off, he might return them and receive back his own note. The plaintiffs objected to the admission of this testimony, as attaching a condition to the note by parol. The court,-however, admitted the evidence, and upon the ground that it did not fall within the rule of parol offered to contradict *382 written evidence ; that it did not tend to alter or vary the terms of the note, but admitting them, went to show that the instrument sued upon was not, in any manner, obligatory or binding upon the defendant at the time the action was brought/ The presumption, of course, is, nothing appearing to the contrary, that the written instrument is to take effect from its delivery; but this presumption may be rebutted by testimony, oral or written, which goes to show that the contract was yet in embryo, or that no complete delivery was intended, and that no interest passed. Murray, &c., v. Earl of Stair, 2 Barn. & Cres. 82, (9 Eng. C. L. 33); Marston v. Allen, supra; Bell v. Viscount Ingestre, 12 A. & E. 317, (64 Eng. C. L. 317). The true distinction seems to be, that while you cannot, by parol, show that a note, check, or bill, absolute upon its face and once fully executed and delivered, is, in a certain event, to become void, or is not to be paid or performed in the mode its terms import, you may, as between the original parties', show that such note, bill or check was not to operate as such but in a certain event thereafter to happen, — the obligatory nature of the instrument being made to depend upon the happening of this event, the obligation itself meanwhile remaining suspended. In such a case, the delivery of the written instrument is in the nature of a delivery in escrow. Wallis v. Littell, 5 Law Times. Rep. 489-490; Pym v. Campbell, 25 Law J. Rep. 277. The evidence, objected to, was offered to show that the plaintiff and defendant contemplated a trade, by the terms of which the defendant was to give $45 for the Mathewson note and his own debt of $13, if he could use the Mathewson note in set-off. If he could not so use the note, he did not propose to buy it. He received the note into his possession for the purpose of ascertaining this fact. It was endorsed by the plaintiff to enable the defendant to use it, if Mathewson would receive it. If Mathewson would not receive it, the defendant was to return it. The defendant acquired no present titl^ under the endorsement, because there was no complete and absolute delivery of the note made, or intended to be made. Upon thus receiving the note, the defendant gives his check to the plaiijtiff, with the express understanding, that the plaintiff was to return it if the defendant could not *383 use the note. Hence the check was post-dated. It was in the nature of a memorcmditm-check. It vested no present authority in the plaintiff, to demand or receive the money; neither was it intended to. And this view of the transaction is confirmed by the fact that the plaintiff did not receipt his bill against the defendant, thus showing that he did not regard the trade as completed. We think the evidence does not' fall within the rule, of parol testimony offered to vary or contradict a valid written agreement, and, upon the facts stated in the bill of exceptions, was admissible. As the defendant has impounded, in court, the Mathewson note for the plaintiff’s use, the plaintiff’s exceptions are overruled, and judgment will be entered in the Court of Common Pleas upon the verdict.