Dutton v. Tilden

The opinion of the court was delivered by Bell, J. Tilden, the plaintiff below, brought assumpsit against Dutton, to recover the sum of $17 5, alledged to have been paid to the latter, in purchase of a promissory note, drawn by one Pyle, and supposed to be indorsed by Webb, which, indorsement turned out to be a forgery, and so the note proved to be worthless. To establish his case, the plaintiff gave in evidence the note, proved the forgery, and then read Dutton’s receipt, acknowledging to have received from Tilden $175 in full for the promissory note, “which I have sold this day to H. Tilden, for the $175 received above.” In reply, the defendant offered to prove by Pyle, the drawer, and by one Carels, that in truth, he had nothing to do with the transaction, further than to introduce Pyle to Tilden, between whom, alone, the negotiation was conducted and concluded; that he had never received any portion of the money mentioned in the receipt, and had put his name to it, solely on Tilden’s request to him to act as broker, upon the supposition that the interference of a third person would legalize a transaction otherwise usurious. This offer was objected to on the grounds that Pyle, the maker of the note, was interested; that as a party to the note, he could not impeach it; and that the testimony proposed to be drawn from him and Carels, tended to contradict the written receipt of the defendant. The court entertaining these objections, rejected the evidence. This conclusion of the learned Judge, before whom the cause was tried, is doubtless to be ascribed to the hurry of a trial in a court, where there is great press of business, sometimes precluding [49] much examination or reflection. It is probable that there, as here, the question was presented as one involving the point how far parol evidence is admissible to contradict a written contract; and the court was thus misled into a field of inquiry, which, in truth, has little or nothing to do with the point in dispute. The alledged interest of Pyle, in the event of the action, was neither shown nor pressed in this court. The objection that he was a party to the note duly negotiated, and therefore could not be received to impeach it in the hands of a Iona fide holder, is wholly inapplicable. The action was not upon the note, nor was the witness called to impeach it. This had already been done by the plaintiff, who averred its invalidity, as a part of his case, in fact being the ground work of his action, without which he could not have proceeded a step. The proposed testimony was of independent matter, leaving the note intact, so far as the witness was concerned. That he was therefore not precluded from testifying by the rule of Walton vs. Shelley, is amply shown by Gilpin vs. Howell, (5 Barr 52.) The other objection is equally groundless. The witnesses were not offered to contradict or modify a written agreement, and had they been, it is by no means certain the. proof would have been incompetent; since, if the defendant’s allegations be true, the plaintiff was attempting to use the paper in fraud of the understanding of the parties to it, at the moment of its concoction; an attempt which, according to the cases, opens the door to parol proof. Parke vs. Chadwick, 8 Watts & Serg. 96; Renshaw vs. Gans, 7 Barr 117, Bank vs. Fordyce, 9 Barr 275. But the offer was to contradict a written acknowledgment of receipt of money, not to question the sale of the note to plaintiff, or to invalidate a contract. Now it is well observed by Mr. Greenleae, that receipts may be mere acknowledgments of payment on delivery, or they may also contain a contract to do something in relation to the thing delivered. In the former case, and so far as the receipt goes only to acknowledge payment or delivery, it is merely prima facie evidence of the fact, and not conclusive; and therefore the fact it recites may be contradicted by oral testimony. 1 Greenl. Ev. § 305. The authorities collected by him show this position to be undoubted; and to these may be added our own cases of Hamilton vs. McGuire, 3 Serg. & Rawle 355; Jones vs. Patterson, 1 Watts & Serg. 321; and Bolton vs. Johns, 5 Barr 151. As the proposed evidence was competent, so also it was relevant, for the action being for money had and received, proof that nothing of value in fact passed between the parties, must have defeated it. It was, consequently, improperly excluded. Judgment reversed and venire de novo awarded,