Gould v. Boston Excelsior Co.

Emery, J. The defendant had purchased some poplar cut upon the land of Adams and desired to have it driven down the streams to its mill. It also desired to have other poplar on Adams’ land cut, peeled and driven. To this end, its agent had some conversations with the plaintiffs with reference to their doing the cutting, peeling and driving. As a result of these conversations the plaintiffs gave the defendant a written memorandum signed by them only, and the defendant at the same time gave them a written memorandum signed by its agent only. These memorandums are printed in full, ante, pp. 215, 216. The plaintiffs did cut, peel and drive more or less poplar for the defendant under these memorandums and the amount, or number of cords, was the only question before the jury. It will be noticed that in neither memorandum was it stated by whom the poplar should be scaled, or that it should be scaled at all. The plaintiffs offered to show by parol evidence that, during the conversations prior to the exchange of the memorandums, it was orally agreed by both parties that the poplar should be scaled by a scaler to be sent by Adams, the land owner, and that his [220] scale should control. Was such parol evidence admissible for that purpose under these circumstances? It is difficult to reconcile the various decisions upon the general question of when parol evidence of other and oral stipulations may be received where some stipulations are expressed in writing. The cases cited in the majority and minority opinions of the court in Neal v. Flint, 88 Maine, 72, are evidence of that difficulty. We think, however, that a safe rule, decisive of this case, may be readily deduced from the great majority of the decisions, viz:— Where the writing or writings, by reason of their brevity, informality or skeleton nature, do not of themselves import that all the stipulations between the parties with reference to the subject matter were intended to be expressed in them,—and where the particular, stipulation is of such nature that the omission to express it in the writing does not indicate that it was not agreed upon,—and 'it in no way conflicts with any written stipulation,—and does not increase the burdens of either party,—parol evidence of such stipulation is admissible. We do not say that all the above conditions must exist before the parol evidence can be received. We only say that where they do exist, the parol evidence is admissible. The justices of this court have been unanimous in support of at least this latter proposition. Bonney v. Morrill, 57 Maine, 368; Neal v. Flint, 88 Maine, 72. In this case there was no formal draft of a contract containing reciprocal stipulations signed by both parties. There were only informal memorandums exchanged relating to time, place and price, and making certain the things usually most in debate and most desirable to have made certain. The poplar under such memorandums would require to be scaled. It would be natural to provide for a scaler. The omission to name him in the memorandum does not indicate that the parties agreed to do without a scaler. The alleged oral agreement that Adams, the land owner, should send the scaler does not add to, substrae! from, nor in any way vary the duties of either party. It was equally for the benefit of both parties. It was competent for either' party to prove the stipulation by parol evidence notwithstanding the writings. Exceptions overruled.