Johnson v. Miln

By the Court, Savage, Ch. J. The learned judge stated the law to the jury correctly, and there is no ground for the reversal of this judgment. It is true, as stated, that previous to the revised statutes, the law was that the consideration of a sealed instrument could not be enquired into; the seal imported a consideration; nor could fraud be shown only in relation to the execution of the instrument; that the party executing the instrument was drunk or lunatic,.or that the deed was falsely read, or another fraudulently substituted, so that the real assent of the mind was never given. Starkie’s Ev. part 4, p. 478, 80. This rule has been recognized often in this court. In Van Valkenburgh v. Rouk, 12 Johns. R. 338, Spencer, justice, after adverting to the rule observes, “ I will not pretend to say that there is not a great deal of technicality in the application of the rule as to the cases in which you may give evidence impeaching the execution of the instrument under the. plea of non est factum, and those in which you may not.” It was, I apprehend, to abolish this technicality that [199] the legislature passed the following sections: “ In every aciion upon a sealed instrument, and where a set-off is founded upon any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner, and to the same extent, as if such instrument were not sealed and “ The defence allowed by the last section shall not be made, unless the defendant shall have pleaded the same, or shall have given notice thereof, at the time of pleading the general issue or some other plea denying the contract on which the action is brought.” 2 R. S. 406, § 77, 78. The notion that there is greater solemnity in the execution of an instrument with a seal attached to it, than without the seal, seems to be repudiated. The party is no longer estopped by his seal from showing the truth ; there is now no magic in a wafer. In respect to the consideration, all written contracts, whether sealed or unsealed, are placed upon the same footing; and any defence applicable to the one is equally applicable to the other. The plaintiff in error has cited several cases to show that where a parol contract has been reduced to writing, the parol contract is merged in the written contract; and that no parol evidence can be introduced to contradict or substantially vary the writing. This rule of evidence is not disputed. The cases referred to by the plaintiff in error do some of them state the rule with the qualification contended for by the defendant. Thus in Taylor v. Riggs, I Peters, 598, Chief Justice Marshall says: This not being an action for deceit and imposition, but on a written contract, the right of the plaintiff to recover is measured precisely by that contract. The conversation which preceded the agreementforms no part of it, nor are the propositions or representations made at the time, but not introduced into the written contract, to be taken into view in construing the instrument itself. If he (the plaintiff) was drawn into it by misrepresentations, that circumstance might furnish him with a different action, but cannot affect this. Munford v. McPherson, 1 Johns. R. 44, was an action on a warranty on the sale of a moiety of a ship. The plaintiffs on the trial offered to prove a parol warranty, made when the written bill of sale was delivered, which was different from the written war [200] ranty. The evidence was rejected, and the plaintiff non-suited. On the argument one question was, whether when a bill of sale or other instrument in writing is executed and deIivered to the vendee, he can maintain an action on a warranty by parol where there is no allegation of fraud ; and the court held he could not. Chief Justice Kent interrupted the counsel by asking whether a case could be found where an' action had been brought on a parol contract made unojlatu with a written contract. He said the cases cited were all on deceit. It was conceded by the counsel for the defendants, that an action would lie for the false affirmation or fraud, but it did not follow that an action would lie on the warranty, Thompson, justice, in giving the opinion of the court says, it is not pretended that there is any fraud in this case. He then lays down the rule, that where the contract between the parties is reduced to writing, recourse must be had to that instrument to ascertain its extent; but he admits that had the plaintiffs’ claim rested upon a deceit in the sale, the testimony offered might have been received as a circumstance to establish the fraud. It is upon that principle that the defendant rests his defence in this case. It is not that he has any right to damages by virtue of any breach of contract, which contract was by parol and anterior to the charter party; but it is that he is entitled to damages for the fraud practised upon him by the plaintiff by false representations as to the capacity of the brig. In this aspect of the defence the plaintiff’s counsel says that the representations when proved afford no aliment to sustain an action or support a defence. Whether the facts are of that character is not a question properly arising upon this writ of error. If the verdict was against evidence, that should have been corrected in the court below. It cannot be denied that the facts were such as should be submitted to a jury. In doing so, the judge charged the jury that if the capacity of the vessel was knowingly and fraudulently represented to be materially untrue, it was a partial failure of consideration. This was in accordance with the adjudication in the case of Becker v. Vroman, 13 Johns. R. 302, where Van Ness, justice, says that fraud may be given in evidence as a defence, and will be an answer to the whole demand, or in abatement [201] of the damages according to the circumstances of the case. He adds, very properly, that this is a salutary rule, and well calculated to do final and complete justice between the parties, most expeditiously and least expensively. The judge in the court below asked the jury, “ Has there been a fraudulent representation here ? It ought to be made out strongly by evidence$ it must be a statement not true, and which the plaintiff knew not to be true, and of a material fact, and one which the other party did not and could not know; it must be knowledge on one side and want of it on the other.” This was surely strong enough in favor of the plaintiff. The jury, in giving a verdict for the defendant, have found that there was such a fraud as the judge described; that the plaintiff knowingly and fraudulently made a false representation as to the capacity of the vessel; that the defendant did not and could not know what her capacity was. The witnesses had all testified that the registry or custom house measurement Was no test of-the capacity of a vessel. But we are not now concerned to enquire whether the verdict was supported by evidence, but whether the judge properly directed the jury as to the law. I see no error. Judgment should be affirmed. Judgment affirmed.