Mayhew v. Graham

Magruder, J., delivered his opinion as follows: It has already been decided by this court, in the case of Henderson and Mayhew, and others, 2 Grill, 393, that the owner of a vessel may be made answerable for supplies and articles procured by his agent,- as in that case, although those articles had been charged to the agent, provided the vendor was ignorant at the time that such agent was not the owner. This action was brought by the defendant in error, in order to recover the price of the various articles furnished for the brig Harriet, and the plaintiff could only recover,- by proving to the satisfaction of the jury, that the defendants in the court below were, at the time, the owners of this vessel. In order to prove them to be the owners, a bill of sale, previously executed by Hugh Boyle to the defendants in the court below, was offered in evidence. Thereupon the defendants offered to prove by parol testimony, that this deed, though- on its face a bill of sale, was understood, and intended by the parties to it, to be a mortgage. Was such testimony, for such a purpose, admissible? In the case of Wesley and Thomas, decided, (see 6 H. & J., 24,) in 1823, the court said, “by the rule of the common law, independent of the statute of frauds and perjuries, parol proof is inadmissible to contradict, add to, or vary the terms of the original agreement. This principle is founded in the wisest policy; it guards the chastity of written contracts against all interpolations, by considering the agreement as furnishing the best evidence of the intention of the parties.” This case, it has always been supposed, decided questions like that now — 353 — before the court. It states the general rule, the reason of the rale, to guard the chastity of written contracts; and it after-wards sets forth the exceptions to the rule, within none of which was an attempt made to bring the case, now under consideration. Starkie, in his work on evidence, is equally explicit: “Where written instruments are appointed, either by the immediate authority of law, or by the compact of parties, to be the permanent depositories and testimony of truth, it is a matter hoth of principle and policy, to exclude any inferior evidence from being used, either as a substitute for such instruments, or to contradict or alter them. Of principle, because such instruments are, in their own nature and origin, entitled to a much higher degree of credit, than that which appertains to parol evidence; of policy, because it would be attended with great mischief and inconvenience, if those instruments, upon which men’s rights depended, were liable to be impeached and contradicted by loose collateral evidence.” 3 Starkie, 995. 1st Am. Edit. Oral evidence, he adds, shall in no case be received “to contradict, alter or vary a written instrument, either appointed by law, or by the compact of private parties, to be the appropriate and authentic memorial of the particular facts which it recites; for, by doing so, oral evidence would be admitted in usurpation of a species of evidence, decidedly superior in degree,” p. 996. Hence the observation of Lord Tenterden, (in Vincent and Cole, 1 M. & M., 258:) “I have always acted most strictly on the rule, that what is in writing, shall only be proved by the writing itself.” “The writing, says Domat, preserves unchanged the matters entrusted to it, and expresses the intention of the parties by their own testimony. The truth of written acts is established by the acts themselves, that is by the inspection of the originals.” See cases cited, Broom’s Legal Maxims, p. 266. Such, it would really seem, always has been deemed to be the law, and the reason of that Saw, in England, and from England, Maryland borrowed its law on this subject. This, it may be, is not in every respect the law in every one of our sister States, as will appear by the authorities collected in the — 354 — notes to 3rd Starkie. 1009, and in Norris’ Peake, 168. Other States, however, must be permitted to adopt such rules as they choose. It is the business of our courts to take care, that our law is not changed by different laws, and decisions, elsewhere. It is thought, however, that advantage can be taken of this rule, only when the parties to the deed are the parties litigant, which is not the case here. But does this vary the law, as it was laid down in Wesley and Thomas ? To say this, is to reverse that decision, — to say that the language used by the court on that occasion, did not express its meaning. To be sure, that was a case between the parties to the deed, out of which the controversy grew. But the court did not say that parol evidence could not be admitted in that suit, because, in that suit, the parties were parties to the deed, but because of a general rule; a rule that, in any case, parol’ evidence could not be received to contradict the deed; — to give it a meaning which its own words, without any interpolation, will not give to it, or to take from it, any portion of the meaning to be found in its words, unless the deed was impeached, and it was designed to prove, that there was something like fraud or mistake in or about it; and here was a deed to be construed, and no fraud, mistake, or surprise, was alleged. The argument is, that the rule laid down in Wesley and Thomas, is a rule of which advantage can be taken only by one of the parties to it, in a controversy to which the parties to the deed are the parties. No such notion, I feel warranted in saying, can be found any where in the Maryland Reports. If we find it at all, it must be found elsewhere. There is perhaps not a little danger, that in the prevailing fashion here, of referring to the decisions of courts elsewhere, although we may not, in strictness, make laws ourselves, for the good people of the State, yet we may make the courts and legislatures of other States, legislate for this State. This is an evil which “has increased, is increasing, and ought to be diminished. ’’ There is, however, it is believed, no great dapger of being thus misled in this case, if we will take the trouble to examine and correctly understand the cases. It perhaps may — 355 — be safely affirmed, that there are repealed decisions of the courts of Neto York, which, so far from sanctioning this notion, would teach us, that the law is quite otherwise. In the cases, Dey and Dunham, 2 John. Ch. R., 182, and Dunham vs. Dey, 15 John. R., 555. Strong and Stewart, 4 J. C. R., 167. James vs. Johnson, 6 John. C. R., 417. Henry vs. Davis, 7 J C. R., 40; and Marks vs. Pell, 1 John. C. R., 594, it seems to be decided, that in the controversy between parties to the deed, parol evidence may be admitted to vary the terms of it; to prove that a bill of sale, absolute on the face of it, is in truth but a mortgage, and this in a suit between the party making the deed, and the peison to whom it was made, the former alleging, that though a hill of sale, it was made to secure a debt, and asking leave to redeem property conveyed by a deed absolute on the face of it, and the defeasance resting in parol. In such a case, indeed, some such reasoning as this might seem to be admissible. The transaction is one between a creditor and his debtor, not between a vendor and vendee. The object of the parties was not the satisfaction of the debt., but merely to secure the eventual payment of it. To use that deed after it is obtained, not for the purpose for which the creditor professed to ask it, and for which, if the parol proof is received, it will show, that it was unquestionably designed, is an act of downright fraud in a mortgagee; in franc! of the agreement, and also in fraudem legis, which is peremptory, that no mortgagee shall, by any contrivance, deprive the mortgagor of his equity of redemption; “a fraud on the part of the defendant, a mortgagee, in attempting to convert a mortgage into an absolute sale.” 4 J. C. R., 167. In this last case, Chancellor Kent said, that the authorities cited by him, “are sufficient to show, that parol evidence is admissible in such cases, to prove that, a mortgage was intended, and not an absolute sale, and that the party had fraudulently perverted the loan into a sale.” Thus is made out a case of fraud, against, which chancery will relieve. Same in Va. See 1st Wash. R., 14. 1st Hen. and Munf., 101. In England it would seem, that such reasoning would not be entirely satisfactory to the court. See the cases in Coote, pp. 23, 24, &c., to show what is mean! (here by writers and — 356 — chancellors, when they say that “equity will admit even parol evidence,” to show that an absolute conveyance was intended by way of security only. Indeed Chancellor Talbot, ( Talbot’s Cases in Eq., p. 69,) condemned the practice which then prevailed in some parts of England, of taking an absolute deed, with a defeasance separate from it, saying, “to me, it will always appear with a face of fraud, for the defeasance may be lost, and then an absolute conveyance set up.” Here it may be proper to remark, that the unfortunate case of Wesley and Thomas, is, in another respect, most strangely misapprehended. The court is supposed to have decided, that as the case was one between parties to the deed, and simply for that reason, either party was estopped, and could not, by parol testimony, prove, that although it was intended to be a bill of sale in form, the design was merely to secure the payment of a debt. That question, it is believed, the court did not choose, perhaps was not prepared, to decide. The decision was, that in that, and such like cases, “it is essential,” that the bill should charge fraud, mistake or surprise, to let in any parol proof. “It is essential on every principle of correct pleading, that that which gives jurisdiction to the court, should be distinctly and substantially alleged.” The bill in that case made no such charge, and for that reason, the court was not authorised to look at the parol proof, and, of course, could not. have relieved, although there had been the most satisfactory evidence, that the mortgagor agreed to execute a mortgage; that the mortgagee wrote it, undertook to read it to the other, and in doing so, contrived so to misread it, as to make it a mortgage in express terms. That there was a defect in the bill, which was then, and in that court, incurable by the proof, though that proof had been all sufficient to establish a fraud. It would not appear, from the New York and English Reports, that the courts there deem such a charge in the bill to be so essential, as it was declared to be in the above named case, though in this we may be misled by their reporters. We are now urged to make the court say, what certainly it did not say: to declare that to the general rule upon which reliance is placed, there are/ow?’ exceptions; when the court said — 357 — there were but three; to add to the words which were used, some such words as these, “And unless the parties to the deed were not parties to the suit,” this would not be to “ guard the chastity of the written’ ’ opinion, and for such violation of its chastity, we cannot find an apology in any evidence, parol, hearsay, or other, before us. And what would be the consequences of such an unauthorised interpolation? The rule would be entirely changed, and in place of the rule of common law, spoken of in Wesley’s case, what is there stated to be the general rule, is made to be an exception to it. Correctly written, it would be made to read thus : — Parol evidence is admissible to contradict or vary the terms of any written instrument, in all cases; except only when the parties to the deed are parties to the suit; and in those cases too, provided there be fraud, accident, or mistake ! It is not questioned here that the deed was admissible to prove the fact for which it was produced, to wit, that the absolute title to the vessel was in the defendants. It was offered simply to prove, and, if there be no interpolation made, it was proof conclusive, that on the day of its date the defendants became the absolute owners of the vessel, and that fact being established, the liability of the defendants was made out; unless indeed they could have proved, that afterwards, and before the purchase of the articles, the price of which is claimed in this suit, the defendants had disposed of the vessel. No attempt was made by the defendants below, to prove any such sale; but they insist, (and it is their only answer to the claim,) that this deed, although absolute in its terms, did not give them an absolute title; and they wished to be allowed to prove by parol evidence, an agreement or understanding between the parties to it; and which certainly is to be found no where in the bill of sale. This would be to violate the principle which is laid down in Wesley and Thomas, and which, we are told, is founded “on the wisest policy; it guards the chastity of written contracts against all interpolations.” Indeed, to state the doctrine, is a refutation of it. It cannot: be that the same individual, founding his title in each case upon the same written instrument, can insist, when a claim — 358 — against him is established by the deed, that the deed is not what it purports to be, and by par'd evidence of this, defeat the claim; and yet, in a controversy between him and the person who executed the deed, at the same time, and although the testimony adduced in the other case, is now ready to be produced against him, may insist that the same deed, which he was . allowed in the former suit to prove, was only a mortgage, is in this suit no mortgage at all, and thus defraud his creditors or his debtors. Yet such would be the inevitable consequence, confining the rule laid down in Wesley's case to controversies, between the parties to the deed. This however, it is contended, is the law, and that it is to be found in the law of estoppel.- It has not been discovered, that the law of estoppel has any thing to do with the case under consideration. This is an attempt by the party grantee, to impeach a deed executed to himself, and which he has accepted. He offers oral testimony, which he says will give the lie to his deed, -and will prove the real truth in regard to his title, which his own, and only evidence of title, conceals, and misrepresents. Upon what ground is the introduction of this parol testimony,/or such a purpose, resisted? Did the plaintiff rely on the law of estoppel? no such thing. It was insisted, that “ only, the best evidence attainable, was admissible. “It is a fundamental rule of our common law, that oral evidence shall not be given, to add to, subtract from, or in any manner alter or vary, any description of written contracts. Quoties in verbis, nulla est ambiguitas, nulla expositio contra verba fienda est. This general rule or principle has- been established, on the ground, that the writing stands higher, in the scale of evidence, than the oral testimony; and that the stronger evidence ought not, therefore, to be controled or altered by the weaker. ” Addison on Contracts, 158. Such is the rule, except when testimony is offered to invalidate the instrument in a contract which cannot be impeached, as in this case, is made and reduced to writing by the parties; the writing must speak for itself, and not be interpreted by witnesses, who may at the time have misunderstood the parties to the contract, or if they correctly understood their meaning at the time, may since have forgotten — 359 — it. Verba volant, scrvpta manent. This is the law, and would have been the law of this case, although no law in regard to estoppel, had ever been heard of. The case of Carroll vs. Norwood, 5 H. & J., 164, was a controversy between two persons, one of them claiming indeed under the parties to a contract or grant, but the other, an entire stranger to it, and yet parol testimony to prove the intent of the parties, and the meaning of the written deed, was inadmissible. It may sometimes be the case, that a deed is evidence for one party, and not admissible when offered in testimony by his adversary. “They alone,” (the parties to the instrument,) “are to blame, if the writing contains what was not intended, or omits that which it should have contained. It cannot affect third persons.” 1st Greenl. on Evid., sect. 279. See also 4th chap., of same author. In the trial of this cause, a deed executed by another person, to the defendants, was offered in evidence. The first enquiry was, for what purpose was that deed offered? If admissible, and admitted for that purpose, it is to speak for itself ■, and if its meaning be doubtful, who is to say what is its import? What interest in the thing thereby transferred, passed to the vendee? The court, and in construing it, “ the court are to regard, and be governed by the intention of the parties, to be collected from the deed, if not incompatible with some rule or principle of law.” — “And nothing extrinsic or de hors the deed, is to be recurred to, in ascertaining such intention.” Carroll & Norwood, 5 H. & J., 164. Except in the single case of a latent ambiguity, or unless the deed be impeached in a proper way, and by the proper person, for fraud, mistake, or surprise. Now, it cannot be pretended, that these defendants attempted to impeach this deed upon either of these grounds, or that there is in it any ambiguity, latent, or otherwise. “ In such cases,” we are told, in 1st Greenleaf on Evidence, sect. 277, “the duty of the court is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used,” — 360 — I adopt then, in reference to the question here, the language of Ch. J. Tindel, in Attorney General vs. Shore, 11 Simons' Reports:—“In such cases, evidence, de hors the instrument, for the purpose of explaining it according to the surmised, or alleged intention of the parties to the instrument, is utterly inadmissible. If it were otherwise, no lawyer would be safe upon the construction of a written instrument, nor any party in taking under it; for the ablest advice might be controled, and the clearest title undermined, if at some future period, parol evidence of the particular meaning which the party affixed to his words, or of his secret intention in making the instrument, or the objects he meant to take benefit under, it might be set up to contradict, or vary the plain language of the instrument itself.” It is due to the question, which of itself is of importance to the community, and which derives additional importance from the circumstance, that an equal division of the court seems to leave this a doubtful question, after it had been decided in the case of Henderson and Mayhew, that some notice should be taken of it, in connection with the case of Crawford's Adm's, vs. Brooke, ante, 113. This latter suit was brought upon an account alleged to be due from the deceased to Hodges Sp Brooke, and by them assigned to John B. Brooke, the plaintiff in the court below. The assignee brought the suit as assignee, and grounded his right to be the legal plaintiff in the suit, upon the act of 1829, chap. 51. In order to recover, it was necessary that the jury should be satisfied, that the deceased owed to the assignors the sum claimed, and that the claim was not barred by the statute of limitation; also, as the assignment of it. To prove the claim and a promise by the deceased, within three years before the institution of the suit, to pay it, he examined as a witness, Brooke, (one of the assignors and original creditors,) and by him proved the services, and the promise to pay, within the three years; and also proved the assignment. ¿Supposing this to be all the proof required on his part, in order to show that he was, bona fide, entitled to his debt; and supposing that a bona fide assignment could mean in tha case, nothing more — 361 — than an actual transfer, in the form used, of the debt, and not a contrivance by the aid of his own testimony, to recover money, which, when recovered, would go into his own pocket, the plaintiff, upon this proof, rested his case. Thereupon, the defendant below enquired of the witness, quo animo, he executed the assignment; and expected to prove by the answer, that it was executed and the debt transferred, for the purpose of enabling the witness to testify in the case, as before stated; and this proof the defendant said was offered, in order to show that the assignment was not according to the act of 1829. It appearing that the witness had no interest, whatever, in the event of the sSit; and as the motives of the assignor could not affect the title of the assignee, to the money, (7 Wheat., 566,) the court refused to direct the question to be answered, the answer having no tendency to prove what it was offered to prove, that the plaintiff was not bona fide entitled to the money for which the suit was brought. The case, then, was like a case of frequent occurrence in our courts, when a witness who has been examined, and has established the claim, is discovered to be interested as legatee, distributee, &c., and who for the declared purpose of being a witness, and proving the claim, releases, assigns, or transfers all his interest, and thereby makes himself a competent witness. The decision of the court then was, that as the witness had divesled himself of all possible interest in the event of the suit, the question was inadmissible for the purpose for which it was put, but not that it. was inadmissible for other purposes, such as to affect his credibility. The exception then distinctly presents the question, whether this proof, if admitted, might not have shown, that by this assignment, which is required by the act of Assembly to be in writing, the plaintiff was, bona fide, entitled to the chose in action. This court reversed the judgment, but expressly upon the ground, that the answer, “ which it must be assumed would have been given to the question, was material to destroy his competency, indeed, to avoid his assignment. The objection, it is added, was made by one who was injuriously affected by the assignment, upon the ground, that, it was founded in fraud.” In another part of the court’s opinion, it is said, it — 362 — was offered to prove, that the witness was influenced by considerations which would invalidate the instrument. Now if this court correctly understood that case, there can be no doubt that any person injuriously affected by the assignment, whether he be a party or a stranger to it, could offer proof to invalidate it. It is equally certain, that no two cases could be more unlike, than that case, and the one under consideration. The counsel however, it seems, in support of the judgment of the court below, relied upon the principle, that parol testimony was inadmissible to contradict the written instrument. This, the court correctly observed, had no application "to this case; in which the attempt was made, not to explain or contradict, but to invalidate the assignment. What is added, that the rule relied on by the counsel, is confined to the parties to the instrument, and does not extend to third persons, is inapplicable to the case before us; because in this case, the benefit of the rule is claimed by a third person, and it is a party to-the deed, who denies that he ought to be affected by it. It cannot be alleged, that in a case which is now to be’ noticed, tho question under consideration was not expressly decided.- The case alluded to, will be found reported in 2 Gill, 393, and was against the same defendants, claiming of them a sum of money for articles furnished for the selfsame vessel as in this case, and on the selfsame ground, to wit, that these defendants were the owners of this vessel, Harriet. The proof of that ownership was the selfsame bill of sale, which is introduced into this case for the selfsame purpose; and the selfsame effort which is made in this, was made in that case, to defeat the claim by the im troduction of parol evidence, to prove the bill of sale to be a mort-gage. This parol proof was rejected in the court below, (by Archer, C. J., and Purviance, A. J.,) and this court upon an* appeal decided that case, precisely as the court below decided-this case, — that parol testimony for such a purpose was inadmissible, — though that case, like the present, was brought against one of the parties to the deed, by a person who was not a party to it, nor the representative of any party to it, or claiming under it. In expressing the opinion of the oourt in that — 363 — case, the following language was used: — “The appellants, after obtaining an absolute deed, and authorising the community to regard them as the owners of the vessel, cannot now, for their own benefit be permitted to allege, that their bill of sale is a mortgage. The party here, who is a stranger to the deed, insists, that it is what it purports to be; and the appellants, who accepted it, are precluded from offering the evidence on which they rely, in order to defeat the action against them.” Surely we cannot in this case, quarrel with the decision of the court below, and pronounce that there was manifest error in it, when that court learned this law from a decision of this court, in a case which differs in no respect from this, but in the name of the plaintiff, and the sum claimed. Entertaining the opinion, that the plaintiffs in error claiming under this bill of sale, must upon this appeal be considered the absolute owners, and that they cannot in the manner proposed, shift from themselves any responsibility which the law says shall be the consequence of such ownership, I think this judgment ought to be affirmed; and now— Magruder, J., delivered the opinion of this court. It has already been decided by this court, in the case of Henderson and others, and Mayhew and others, December term 1844, (and see also Wyman against Gray, 7 H. & J., 409,) that in the case of goods sold an agent, if the principal be not known at the time of the sale, when he is discovered, he or the agent may be sued at the election of the vendor. In such a case, of course, the proof must establish, to the satisfaction of the jury, that the defendants were the owners of the vessel, and the plaintiffs were ignorant of it at the time of the sale. The several opinions of the court below, to this effect, are affirmed. The plaintiff in the court below having offered in evidence a bill of sale, executed by II. Boyle to the defendants, conveying to them the vessel, for the repair of which, articles were furnished by the plaintiffs, efforts were made by the defendants below, to prove that the bill of sale was only intended as a mortgage. In these they were unsuccessful, and exceptions — 364 — were taken to the opinion of the court. This court being equally divided in opinion upon these exceptions, the opinions of the court below are affirmed. JUDGMENT AFFIRMED.