Ballingall v. Bradley

Catón, J. There is an apparent conflict in the testimony upon some points in this case, and especially as to the question whether any agreement was ever made between Scheimer and the complainant, that the former should redeem the property sold upon the first, decree, and the venditioni exponas for the use and benefit of the latter. Several witnesses testify that both Scheimer and Duncan repeatedly stated that such an agreement had been made. This is positively denied by Scheimer, in his deposition, and th.e testimony of Smith is to the same point, and nearly as satisfactory, for he states circumstances which lead strongly to the conclusion that he would have known it, had there been such an agreement. There is no doubt that negotiations were had between the parties with a view to such agreement, but it is, to say the least, exceedingly doubtful whether they ever terminated in an actual agreement or understanding on the subject. It is highly probable also that Scheimer did entertain the intention of allowing the complainant to take back the property, should he be paid the amount of his debt, and the strong probability is, that the expression of such intention was understood by the witnesses as the admission of the existence of an agreement to that effect. It is the liability to such mistakes and misunderstandings, which renders it necessary and proper for courts to receive with great caution testimony of oral declarations for the purpose of establishing a contract. Hence, too, the enactment of the statute of frauds. The subsequent conduct of the complainant, to the tenants in possession of the promises, is utterly inconsistent with his understanding of the existence of such an agreement as he now alleges. But admitting that there was a parol agreement of the character alleged, it is very clear that it was never evidenced by any writing signed by the party to be charged. For the purpose of making out written evidence of the agreement, reliance is had upon a supposed letter written by Scheimer to the complainant, while he was absent in Scotland, and which letter is said to have been lost. Stevens testifies that after the complainant’s return, he showed him such a letter, which was in English and in Scheimer’s hand writing, with which he was acquainted. Stevens testifies that in that letter, Scheimer, after urging the complainant to send him money to enable him to redeem the property, stated in substance as follows: “ for you know that under our agreement I am to save the property for you for your benefit.” As to this letter, it is very clear that Stevens was mistaken in his recollection. The evidence satisfactorily establishes that Scheimer always conducted his correspondence in French, and that he never wrote a letter in English in his life, and that whenever it was necessary for him to correspond in English, he got another to write for him. The witness Smith states that he was on the most intimate and confidential terms with Scheimer. That he was his partner in business, and acquainted with his confidential and private transactions, and wrote all his English letters for him. He states that Scheimer received a letter from the complainant, written in New York, when on his way to Scotland, stating that his sister would assist him to money “ to amount that will save the property,” and requesting to be informed “ what kind of money will be required to satisfy the demand.” To this letter, Smith tells us that he “ replied in the name of Schiemer, stating that any money current in Scotland would be current here, and informing of his family’s health. Nothing more."” This was undoubtedly the letter which Stevens saw, and it is very certain that it was notin Scheimor’s hand-writing, although it is very probable that he signed it himself, as we may understand from Smith’s testimony. Under the circumstances, Smith’s recollection is much more tobe relied upon than Stevens’, as to the contents of this letter. Smith wrote the letter, and was familiar with the subject to which the correspondence related, and he states that Scheimer never at any time told him that he had any agreement with the complainant that he should have a right to redeem the land, and there can be no doubt that had the letter contained the clause which Stevens thinks it did, that Smith must have recollected it. The letter, as written, may raise the presumption that Scheimer was disposed or willing to let the complainant have the land, by his refunding the money, or satisfying the claim, but it does not show that an agreement subsisted between them that he should have the right to do so. Laying out of question the want of any consideration to support such an agreement, we cannot hesitate to say, that there is no such written evidence of the agreement alleged in the bill, as will take it out of the statute of frauds. The decree of the circuit court dismissing the bill, must be affirmed. Decree affirmed.