Mead v. Steger

COLLIER, C. J. The defendant in error brought assumpsit against the plaintiff, in the Circuit Court of Jackson county, upon a writing, of which the following is a copy: “ ^190. On or before the first day of January next, I promise to pay Allen Steger, or order, the sum of one hundred and ninety dollars, the same being for the hire of negroes, and rent of land: which negroes are Ned and Davy. Said negroes to be clothed with the usual clothing. Value received, &c. March 12th, 1834. Samuel Mead. fSeal.J” The plaintiff in error pleaded, non-assumpsit; no consideration ; and failure of consideration. On the trial, the defendant proved, in support of his declaration, the occupancy of his land, and the possession of the two negroes, named in the note, to have been with the plaintiff during the year one-thousand eight hundred and thirty-four. In his defence, the plaintiff offered to prove, that the consideration of his note, was the rent of a plantation for the balance of the year, eighteen hundred and thirty-four, after the date ofhis'note; the hire' of the negroes, Ned and Davy, and the privilege of cutting timber on the land, within the inelosure; that the privilege was of the value of [504] eighty or ninety dollars to him, and that after cutting eight or ten dollars worth of timber, he was prevented by the defendant from cutting more.— The introduction of so much testimony, as related to the privilege by the plaintiff to cut timber, and the refusal to allow it, was objected to by the defendant, and rejected to by the Court: whereupon, the defendant excepted, and here assigns for error, the exclusion of his evidence by the Court. Was parol evidence admissible to shew any other consideration for the plaintiff’s promise, than that expressed in his note'! It is not allowable to contradict or substantially vary a written contract, or its legal import, by parol evidence.—(9 Wheaton’s R. 581. 3 Mason, 378.) Nor is it admissible to extend a written contract. (2 Day’s Cases, 137. 1 Caine’s R. 358.) Where parties have agreed upon the terms of a contract, which is afterwards reduced to writing, the verbal agreement is merged in the .written contract, and cannot be varied by parol evidence.—(3 Conn. R. 9.) In such cases, it must be supposed that the writing, which is subsequent in point of time, truly expresses their definitive, agreement.—Sommerville vs Stephenson & Johnson, 3 Stewart’s R. 271. And even though the verbal and written contracts, were simultaneously made, the rule would not be varied. But notwithstanding the conclusiveness of the rule, which inhibits the introduction of parol evidence, to contradict or vary a written agreement, a party may shew that by fraud or undue means, there was an omission to state the contract truly. [505] (3 Starkie’s Ev. 1015 & 6. 1 Murphy’s R. 426. 4 Dessaus. 211.) So if it contain alatent ambiguity, parol evidence is admissible, in explanation, otherwise the contract might be wholly inoperative.— (5 Mass. R. 411. 3 Starkie’s Ev. 1021.) The agreement of the parties in the case before us, may be thus simplified. The defendant undertakes with the plaintiff, that he shall occupy his plantation and have, the possession and services of his two slaves, for the year eighteen hundred and thirty-four. The plaintiff agrees, that as an equivalent, he will pay the defendant the sum expressed in his note: — here, are mutual undertakings, each in consideration of the other. The note in itself, does give the defendant a cause of action, but to entitle him to a recovery, it was necessary to prove a license to occupy the land, and an offer to deliver the negroes. Yet the writing bears on its face, ■ evidence of a perfect contract, and it is not pretended that from fraud or other cause, it omits any stipulation of the parties. It is then clear, that if it come within the principles applicable to ordinary contracts, it was not admissible to shew, that any other cause, than that stated in the note, influenced the plaintiff’s promise. ■ It has been argued, that the general rule, applicable to the admission of parol evidence, where the contract is in writing, does not apply to proof, such as that offered in the Circuit Court by the plaintiff: That there, the proposition was to shew an additional consideration, which it is said, is tolerated by authority. Without pretending to negative this argument, when applied tó a proper state [506] of facts, we are entirely satisfied that it is- not permissible to prove an additional and different consideration from that expressed in the writing,— this would be to contradict it. Where it is said in a deed, that a conveyance is made in consideration pf a particular thing, this imports the whole consideration and excludes the idea of any other. (1 Starkie’s Ev. 1004.) If a deed contains nothing respecting the consideration, it may be upheld by shewing what it was; for this, is not to contradict the deed. (1 Ves. 128. 15 Mass. 92.) Where a deed, after stating a certain consideration, adds the words, “and for other considerations,” parol evidence is admissible to shew what were those other considerations. (1 Johns. C. R. 370.) But without these general words, it cannot be received. (1 Johns. R. 139. Ibid. 414.) In Virginia, it has been decided, that where a deed is made, “in consideration of natural love and affection, and one dollar,” parol evidence was-admissible to shew that other valuable considerations passed; (1 Rand. R. 219.) and that either party may aver and prove a consideration, different from that stated in the deed. (4 Hen. & Munf. 113.) In South Carolina, it has been determined, that a different consideration from that expressed in the deed, cannot be shewn at law, but that a less or greater consideration of the same character may be shewn. (Garret vs Stuart, 1 M’Cord, 514.) Such we understand, to be the authority of'the cases in Roberts on Frauds, to which we have been referred, by the plaintiff’s counsel. (Roberts on [507] Frauds 117. note 58. See further on the point, 6 Harris & J. 276, 299. 1 Har. & Gill, 175.) Where there is a monied consideration, expressed in a deed, the weight of authority, is in favor of shewing the consideration to have been greater or less, than that stated, for the reason, that it is not usual to state it with precision. But it is against allowing proof of a consideration wholly different from that set forth in the deed. In the case before us, the evidence offered, did not tend to enlarge or diminish the consideration, as where money alone is given, nor from its nature, could it he enlarged or diminished; and as no ground was laid for its introduction, by proof of a fraudulent omission in the contract, we are of opinion that it was properly excluded by the Circuit Court; and its judgment is therefore confirmed. V»