Hoxie v. Hodges

Stratton, J. Exception was taken to the rejection of the above deposition, and that is now assigned as the first error, and presents the main’question in the case. There is no principle of law better established, than that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. (1 Green-leaf Ev. 2Y5.) It is not that an unwritten contract is less binding upon parties to it, in a legal point of view, than one which is reduced to writing; but such is the frailty of the memory of men—so liable are they to misapprehension, or honest mistake, without regarding the temptation to corrupt misstatements, where there is but a narrow chance of detection—the law gives preference to written instruments, as the better evidence of the intention and understanding of the parties. ■ All experience teaches, that when a contract is carefully [253] and deliberately reduced to writing, it forms the safest and best standard from which to judge of the intention of the parties. The general rule was not questioned on the argument, but it is said that this case does not fall within the rule. Something has been said between counsel as to the actual appearance of the original note, and the position of the names thereto; but it is conceived that this court is to be guided only by what appears on the face of the records. A copy of the note is there set out, and it must be taken to be a true copy, in matter and form, for the purposes of our inquiry. The instrument upon its face is, in all respects, perfectly regular and fair; and it is admitted by Hoxie that he signed the note, not as a maker, but to attest the genuineness of the paper. "What would be the effect of the testimony if admitted ? Not to deny the execution and delivery of the note at the time when, by its date, it purports to have been given; nor to impeach the original consideration; or to show a failure of consideration; or to taint the transaction with fraud in any manner. Either of these facts, if they existed, would have been a good defence. It is not to be doubted, that to admit this testimony would be to change wholly the character of this instrument, and the legal obligations of one of the parties thereto, while there is no ambiguity, nor room for doubt. It is conceded that this case is fully within the principle laid down in Hunt v. Adams, 7 Mass. 518; Stackpole v. Arnold, 11 Mass. 27; Dale v. Pope, 4 Littell, 167; and Cram, Rogers & Co. v. Wadsworth et al., decided at the last term of the Supreme Court of the late territory. But it is said there was no consideration as to O. D. Hoxie. To this it may be answered, that the obligation was joint as well as several, and if the consideration was good as to one obligor it would be good as to the other. Admitting O. I). Hoxie to be a joint maker, and he must be so regarded, the consideration and obligation cannot be severed. An objection is also taken to the finding of the court, and [254] it is said that it is informal and insufficient. There was but one issue in the case: Did the plaintiff in error sign the note as principal or as a witness % 'The court answered, by the verdict, “ that he did not sign the note as a witnesstherefore, he must have signed as mater; and judgment was entered accordingly. The verdict is sufficient. Judgment is affirmed.