Hewes v. Taylor

The opinion of the court was delivered, February 19th 1872, by Thompson, C. J. It seems to us very clear that the letters of the plaintiff of the 9th and 10th of September 1869, to the defendant, actually preceded his of the 9th, especially when taken in connection with the testimony of the plaintiff himself. He testified that his letter of the 9th of September he sent by Nathan T. Hayes, and that in consequence of the message returned, he wrote the letter of the 10th to the defendant, and that the letter of the latter, dated the 9th, was an answer to his of the 10th. It seems obvious that the plaintiff’s letter of the 10th was in consequence of a communication received from the defendant, for it refers to a proposition he had received from him about guaranteeing Ridgway and Miers’s undertaking, and about which he says he thinks it is “ a pretty heavy shave.” It seems equally apparent that the “shave” had reference to his inquiry in a [391] former letter, whether he, the defendant, would guarantee the payment by Ridgway & Miers, and the answer, through Hayes, if he should fill their order for phosphate. No ingenuity conceivable would be equal to the fabrication of such circumstantial details in the absence of all truth. They certainly, together with the parol testimony, prove a mistake in the date of either the plaintiff’s or defendant’s letters, and in this case it is immaterial which. But the mistake is what the learned judge below thought could not be proved without contravening the Statute of Frauds of 1855. We think this was error. It is the agreement to guarantee the debt or default of another, which the act requires to be in writing. The agreement would be good without a date, or even if it had an impossible date. The date is a circumstance of identification as to time only; proof of it does not add to, alter or change the terms of the agreement, although it might be forgery if inserted without consent or authority. I know of no case, however, in which it may not be established by parol proof if omitted in the writing by mistake, in the first place. The letters here connect themselves so completely and perfectly, in sense and in the development of a united design, and both parties so fully acted up to the very details of the proposed contract without objection, the jury could hardly have hesitated in finding that the defendant’s letter of the date of 9th of September was in answer to plaintiff’s of the date of the 10th. This they did, and thus a contract resulted. In Shively v. Black, 9 Wright 345, we held that the consideration of the guaranty to answer for the debt or default of another, although omitted in the writing, could be shown by parol. This was a liberality of construction of the act, equal, if not superior, to that desired in this case. It was shown by my brother Read, in the opinion in that case, that this is the present English rule, although long resisted in their courts. We think the contract found by the jury was legitimately deduced from the letters and testimony, and that the learned court erred in not entering judgment on the verdict. It will be done now here. And now, February 19th 1872, judgment on the reserved question entered non obstante veredicto is reversed, and judgment is entered on the verdict for $723.63, with interest from its date, and costs of suit.