Corbin v. Sistrunk

CHILTON, J. Assumpsit upon a writing executed by the defendant in error to the plaintiff, as follows : “ I, Susannah Sis-trunk, do oblige myself to pay to Jerome B. Corbin, for his ser [205] vices for'overseeing, the sum of two hundred and fifty dollars in money, and two milch cows, also five acres of land to be ploughed when necessary.” This writing was attested by Daniel M. Perry as a subscribing witness, who was examined upon the trial, and testified that the writing was executed in the latter part of the year 1849, and that the services stipulated for were to commence the 1st Jan. 1850, and to continue for that year; that after Mrs. Sistrunk had signed the writing, and the witness had placed his signature to it, and when she was in the act of passing it to Corbin, but before it was delivered, she said to Corbin •that unless he brought a recommendation from Dr. Crymes she •could not employ him, to which the said Corbin replied, that unless he did bring such recommendation she need not hire him. It appeared that nothing had been previously said between the parties as to Crymes’ recommendation. The plaintiff objected to the testimony of Perry, but the court overruled the objection, and the plaintiff excepted. It was also made to appear, that the plaintiff was ready and willing to enter upon the service contracted for at the time agreed upon, but did not produce the recommendation of Dr. Crymes, who, as the proof conduced to show, refused to recommend him; but Mrs. Sistrunk refused to hire him, and without calling for the production of such recommendation, told him she had employed another person. The court charged the jury, that if they believed from the evidence that after the writing was signed by the defendant, and whilst she was in the act of delivering the same to the plaintiff, she said that unless the plaintiff brought a recommendation from Dr. Crymes she could not receive him as overseer, and that this was assented to by the plaintiff, the writing would not bind the defendant until the recommendation of Dr. Crymes was produced by the plaintiff, and if that had not been produced, the plaintiff could not recover. To this charge the plaintiff likewise excepted. There is a marked difference between parol evidence which goes to vary, contradict or add to written agreements which intelligibly speak the intention of the parties, and which they have adopted as furnishing evidence and full expression of their intention, or which changes the legal effect of such agreements, and parol proof which shows that the instrument is alto [206] gether void, or that it never had any binding efficacy, or the want of consideration, either in whole or in part. While the first is inadmissible, the latter is constantly received. — 1 Greenl. E.,§ 284. In the case before ns, the defendant gave her note, thus executing the contract upon her part, and the writing evidences the terms of the contract, so far as to be performed by her, but the contract on the part of the plaintiff wras altogether executory. He was to produce the recommendation of his former employer, (Crymes,) and serve as overseer for the year 1850. This constituted the consideration for the note sued on, and if he failed to perform his part of the contract, the plaintiff could not require a performance on the part of the defendant. The undertaking to obtain the recommendation from Dr. Crymes was a condition agreed upon as precedent to his entering upon the service. It formed the first and a substantial part of the consideration, without which, or a waiver of it on the part of the defendant, the whole consideration failed, and the contract became inoperative. The record presents no question as based upon a waiver of the recommendation, and as the plaintiff failed to procure it, we are very sure that Mrs. Sistrunlc had the right to treat the contract as at an end, and to reject 'the plaintiff as overseer. The proof that Crymes refused his recommendation, and that consequently the plaintiff was unable to produce it, coupled with the fact that its production was to precede the service, and that such service was never rendered, goes to the entire consideration of the contract. The admission of the evidence of Perry, and the charge of the court as based upon the proof set out in the bill of exceptions, were entirely correct — see upon this point, Murchie v. Cook & McNair, 1 Ala. 41; Simonton v. Steele, ib. 357; Honeycut, use &c. v. Strother, 2 ib. 135; Barlow v. Fleming, 6 ib. 146; 3 Phil. Ev., (C. & H. Notes,) 1413; Ib. 1450-53. This case is distingushable from Long against Davis, at the present term, where we held that the charge of the court vrhick gave to a parol agreement made contemporaneously with the writing, the force of changing the legal effect of the writing, vras erroneous. Let the judgment be affirmed.