Hazard v. Loring

Bigelow, J. The rule that parol evidence is not admissible to vary, explain, or control a written contract, is not applicable to mere bills of parcels, made in the usual form, in which nothing appears but the name of the vendor and vendee, the articles purchased, with the prices affixed, and a receipt of payment by the vendor. These form an exception to the general rule of evidence, being informal documents, intended only to specify prices, quantities, and a receipt of payment, and not used or designed to embody and set out the terms and conditions of a contract of bargain and sale. They are in the nature of receipts, and are always open to evidence, which proves the real terms upon which the agreement of sale was made between the parties. 1 Cowen & Hill’s note to Phil. on Ev. 385, n. 229; 2 Ib. 603, n. 295; Harris v. Johnston, 3 Cranch, 311; Wallace v. Rogers, 2 N. Hamp. 506; Bradford v. Manley, 13 Mass. 139; Fletcher v. Willard, 14 Pick. 464. The case of Lamb v. Drafts, 12 Met. 353, which was cited by the defendants in support of an opposite doctrine, does not sustain it. All that was determined in that case was, that an executory agreement for the delivery of articles being void, [269] under the statute of frauds, no action could be maintained upon a warranty as a part of such agreement, because the contract was wholly void, and that there was no evidence in the case by which the warranty made in connection with the previous executory parol agreement, which was void, could be ingrafted on or made part of the subsequent executed contract of sale between the parties. The instructions to the jury in regard to a waiver, by the defendants, of a tender of the money for which the goods were pledged, were properly guarded and limited, and are well supported by the authorities. The production of the money, and the actual offer of it to the creditor, is dispensed with, if the party is ready and willing to pay it, and is about to produce it, but is prevented from so doing by a declaration on the part of the creditor, that he will not or cannot receive it. 2 Greenl. Ev. § 603; Barker v. Parkenhorn, 2 Wash. C. C. 142; Blight v. Ashley, Peters C. C. 15. In the case at bar, the statement of the defendants was equivalent to a refusal to receive the tender if made, and was such as fully to justify the jury in inferring that the production of the money and its formal tender were waived by them. Exceptions overruled.