Clarke v. Tappin

Dutton, J. The plaintiff in support of his declaration offered to prove that prior to the 18th of September, 1850, the firm of Clarke & Co., of which he was a member, held a promissory note of the form following, to wit:—“ New York, November 24, 1845. Two months after, date we promise to pay to the order of Messrs. Clarke & Go., nine hundred and eighty dollars, value received. Coggeshall & Tappin; ” and that in consideration that the plaintiff promised to discharge him from his liability on said note he promised the plaintiff to pay — 67 — him within two years, the amount of said note ; and that thereupon the plaintiff gave to him a writing of the form following, to wit:—“ In consideration of the sum of one dollar to me in hand paid by John Tappin, of the late firm of Coggeshall & Tappin, of the city of New York, I do in behalf of the firm of Clarke & Co., of New Haven, Connecticut, hereby release, quitclaim and forever discharge the said John Tappin of and from all debts, dues, claims and demands which the said firm of Clarke & Co. have against the said John Tappin, as a member of the late co-partnership firm of Coggeshall & Tappin. Dated September 18, 1850. Samuel J. Clarke, (Seal.)” The defendant objected to the admission of this evidence, claiming that it was excluded by the written instrument; but the court admitted it. The defendant further claimed that as this was the only evidence by which the fourth count could be sustained, which was not denied, the court ought to instruct the jury to find on this count for the defendant; but the court refused so to charge the jury. Were these rulings correct? We think they were. The defendant objected to the evidence offered, in the first place, on the ground that it contradicted or varied the written instrument. This objection can not prevail. The rule is undoubtedly well-settled, that where a contract is reduced to writing parol evidence is inadmissible to contradict or vary it. The foundation of the rule is, that the parties have designedly put the agreement in a more certain and reliable form than it was while it wag merely oral. But to give the writing this conclusive effect the agreement itself must be reduced to writing. The rule evidently does not apply where the writing is merely given in performance of the contract. In the present case, the promise on the part of the plaintiff was to give the discharge. In giving this instrument he only did what he agreed to do. The defendant only accepted this performanceas he was bound to do. It was not the object of the parties to provide better evidence of what the original agreement was. In Collins v. Tillou, 26 Conn., 368, Collins agreed by parol to deed land to Tillou, which the latter agreed to sell, and account to Collins for the, avails. Collins and — 68 — wife then gave a deed of the land to Tillou, containing the expression, “ for the consideration of a valuable sum in dollars and other considerations received to our full satisfaction ” of the grantee. The suit was brought on Tillou’s parol agreement to account. The defendant’s counsel made the same objection that is made here, insisting that by the deed the contract was reduced to writing. Ellsworth, J., in giving the opinion of the court (page 374,) says:—“ The error of Tillou’s counsel is, that they suppose the contract in dispute to be the contract of sale in the deed, which is not so. The contract in dispute was made before the deed and not by it or in it. The deed only follows up the contract by carrying it into execution, and is both subsequent to and in pursuance of it.” That case is stronger than this, for a deed has much more the form and effect of a mutual contract than this discharge. To hold that a deed or a release given in pursuance of a verbal contract should exclude par pi evidence of what the contract was, would in many transactions work the grossest injustice. It would convert a mutual contract into a one-sided one, and relieve one of the parties from fulfilling his obligations. Suppose A should agree to sell a house to B, and B should agree to give a note for it for one thousand dollars payable in one year, the ordinary course of business would require of A to give to B a deed of the house with a consideration expressed of one dollar or one thousand dollars received to his full satisfaction of the grantee. What a reproach upon the law it would be if B coiild take the deed, and then gay, the only contract that I acknowledge is the written instrument and from that it does not appear that I am under obligation to do or to pay anything ? The rule of evidence on which the defendant relies, is, when properly applied, one of the most useful and valuable in the law ; but when it is carried to an extreme, and made to override all the maxims of common sense and the universal impressions of men in the transaction of business, it becomes extremely impolitic and mischievous. In the second place, the defendant puts substantially the . same objection in a somewhat different form. He insists on the well-settled rule of law, that where there is an agreement — 69 — in writing, all previous representations and stipulations relating to the subject-matter of" it must be regarded as merged in it. This is merely reversing the order of considering the same transaction, commencing here with the instrument. Here is the same fatal error of regarding a deed or a release which is given merely to carry into effect the stipulations on one side of a mutual agreement as containing in itself the whole of a mutual agreement. What does the discharge in this case bind the releasee to do ? Clearly nothing. To ascertain what he was to do we must go back to the original parol agreement. In the third place, it is said that here is an acknowledgement in a sealed instrument' that the releasee has performed all that lie bound himself to do, and that this can not be contradicted. We admit that there are a number of English and some American cases which sanction, what appears to us the absurd doctrine, that if a deed contains the expression of a consideration received to the full satisfaction of the grantor, even although the deed is not signed by the grantee, the only remedy for the grantor to recover the real consideration is a bill in equity to correct the instrument. But these cases do not show and can not show how a bill in equity can be made available where no mistake has been in fact made, but the parties have understandingly had the instrument drawn precisely as they intended to have it. Nor do they explain away the folly of a rule which would under such ordinary circumstances drive a party into a court of equity. We are happy to be able to say that this doctrine has been long since exploded in this state, and this view has been sustained in other states. The insertion of such a consideration is considered as being made merely for the purpose of giving full effect to the instrument. Belden v. Seymour, 8 Conn., 304; Meeker v. Meeker, 16 id., 383; Collins v. Tillou, 26 id., 368; Clapp v. Tirrell, 20 Pick., 247; McCrea v. Purmont, 16 Wend., 460. Lastly, it is strenuously insisted that there is such an inconsistency and repugnancy between the discharge and the promise offered to be proved, that the court ought to exclude the evidence. ít is said the plaintiff, with the same breath, attempts to prove that the debt has been extinguished and is — 70 — still in existence. This objection at first appears somewhat plausible, but a little examination will show that it is a mere play upon the word debí. What was the defendant discharged from ? A partnership note to pay a certain sum of money already due. What is he sued on ? A verbal individual promise to pay a sum of money of equal amount with the note within two years. The two obligations are far from being identical. It could not be contended for a moment that the discharge of the partnership note, so far as the defendant was concerned, was not a sufficient consideration for any legal promise. What illegality is there in such a verbal promise ? Are not parties competent to put the liabilities which exist between them in new forms ? And if they agree to do it, and one of them in good faith gives up his original claim, is he to be told by a court of justice that he has lost all claim and is without remedy ? In the case of Collins v. Tillou this objection was presented with great force by the late Gov. Baldwin. 26 Conn., 372. It had more point in that case than it has in this. He argues as follows:—“ He (Collins) avers in his deed that he lias bargained and sold the land to Tillou, but he was permitted to prove by parol that he did not bargain and sell the- land at all, and that he by his deed only constituted Tillou Ins agent to sell the land. In the deed he affirms that ho has conveyed the land to Tillou for Tillou’s use and behoof, but he was permitted to show by parol that he conveyed it to Collins’ use and behoof. By his deed he covenanted to warrant and defend the land to Tillou against all claims and demands whatsoever, but the court allowed him to make claim to the land himself upon mere parol testimony.” Thus the counsel made out a plausible case of the inconsistency of a man’s deeding away land and still claiming the same land. But the court could discover no real inconsistency in the case. To their view it was a simple case of a deed of land by one man to another, for which the grantee, instead of paying for the land, promised to sell and account for it. Such considerations may be entitled to great weight on the question of fact whether the parol promise was made or not, but are of no account on the question of law. — 71 — We have been referred to the case of Stearns v. Tappin, 5 Duer, 298. That action was brought on the company note itself. The plaintiff undertook to avoid the effect of the discharge in barring a recovery by offering in evidence the parol promise on which the present suit was brought. But the court very properly excluded it. The plaintiff in that case attempted to nullify the discharge. In this case he relies upon its efficacy. The decision of that case clearly does not contradict the views which we have expressed. The obiter dictum of Duer, J., as to the effect of the expression of a consideration, weighs nothing with us in opposition to the express decisions of this court before referred to upon the same point. A new trial is not advised. In this opinion the other judges concurred.