Beard v. White

ORMOND, J. — No principle of law, is more frequently the subject of consideration in this Court, than the rule of evidence which governs this case, that parol testimony cannot be heard, to add to or diminish a written contract. Exceptions have been engrafted on the rule, which are as well settled as the rule itself; as, for example, that a latent ambiguity, may be explained by parol proof. It is not contended that this case falls within any of the established exceptions to the rule; but that the parol testimony offered, should have been received, because it merely superadded a condition, as to which the written contract was silent. Or if that view is inadmissible, that the evidence merely showed an agreement in discharge of the written contract, and therefore, entirely consistent with it. The rule is one of the utmost importance in the administration [439] of justice, and should be preserved inviolate; as it is difficult to foretell the amount of mischief which would ensue, if it were abrogated or frittered away, by nice and insensible distinctions. The proposition that parol proof maybe received to prove a' stipulation or condition, as to which the written contract is silent, is inadmissible; it would in effect completely overturn the rule itself, and was so held by this court, in the case of McCoy v. Moss & Newberry 5th Porter, 88. When the parties reduce their contract to writing, the stipulations contained in it, cannot be varied either by adding to or diminishing them. If, however, no such attempt is made, but as is frequently the case upon the sale of property, a note is given for the price of the thing-' sold by one party, and the stipulations as to the consideration and subject matter of the contract, are not evidenced by writing, but rest in parol, there can be no objection, if the ends of justice require that they should, be known, that such facts should be established by parol. Thus, in the case of Murchie v. Cooke & McNab, 9th Porter, where Murchie had executed his note for a sum of money, and there was a parol agreement, that it should be paid in a particular mode, we held the parol proof admissible. The court say, “ proof that the note was to be paid in whole or in part, in a particular mode, is entirely consistent with the terms of the written contract; and this, in our opinion, is the only effect that can be ascribed to the rejected testimony. It admits the making of the note, and that the amount is correct, but that it was to be discharged pro tanto, by the debt due the plaintiff in error, from McMahan, Murchie & Co.” So, in the case of W. & J. Simonton v. Ninian Steele at the last term, a case analagous to the one last cited, the court say, “the contract is not evidenced by the note; that only ascertains when the money is to be paid, but leaves us entirely ignorant of the consideration for which it was given, or any of the terms by which the contract was to be governed.” These cases are supposed by the learned counsel for the plaintiff in error, to be in principle like the present; but it is only [440] necessary to advert to the facts of this case, to see that they are entirely dissimilar. In this, there is not only the note for the payment of the price of the land, but there is also a written contract, stating the consideration and other terms of the contract with great particularity. We must conclude that this evidences the intention of the parties, and contains the entire contract. The price to be given is certainly as essential as any other term of a contract; and yet the effect of the parol evidence would be to reduce the price nearly one half, and might extinguish it altogether. It would be passing strange, if, when the mind of the contracting parties is reduced to writing, for the security of both, so vitally important a portion of the contract as this should be omitted. It is not easy to conceive a case in which the wisdom of the rule is more apparent than in this. The parol contract is said to have been made in June, 1830; the written agreement which recites, and professes to carry into effect the previous parol contract, is entered into in February 1S31, by Going, the administrator of Palmer, and the plaintiff in error; and now, after the lapse of ten years, and after the death of both Going and Palmer, it is proposed to alter, by parol proof, the terms of the written, contract, in a most important particular. It is impossible to consider the testimony offered, as merely establishing a mode of discharging the contract, so as to bring it within the influence of the case of Murchie v. Cook & McNab, ’previously cfte'd. Its obvious and necessary tendency is not to -admit that tbkpr.rce of the land is due, and point out a mode of 'payment, but tcrdiminish the price, by showing, that upon the happening of s? certain event, it was not to be paid at all, or only ’in part, The consequence of permitting this to be done, would in our opinion/be of the most alarming character, and deprive alf Written .contracts, of the faith now reposed in them. The principles of those decisions of this court, in which such proof has been permitted, is that the material stipulations of the contract, never were in fact intended to be reduced to writing, but were permitted by the parties to remain in parol, and by necessary consequence, could be established in no other mode. In the [441] cases of Dozier v. Duffee, and Paysant v. Ware & Barringer, at at the last term we held, that parol proof was inadmissible at law, to show a mistake in the written contract. The authority referred to from Norris Peake 101, “that parol evidence might be given of collateral matters about which the written contract was silent, as that the landlord agreed to make repairs in a covenant of lease, rests on the dictum of Lord Hardwicke, which though followed in one or two subsequent cases, has been since expressly denied to be law, as will be seen by the cases referred to by Mr. Sugden, in his treatise on vendors; and this both at law and in equity. Such was the decision of this court, in the case of McCoy v. Moss & Newberry, 5th Porter, 88; previously cited. The court below did not err in refusing to permit the parol testimony to go to the jury, and its judgment is therefore affirmed. Note. — This case was decided at the January Term, 1840, but was omitted through mistake; to be inserted in its proper place.