Cramer v. Shriner

Bowie, C. J., delivered the opinion of this court. This is an action of assumpsit, brought by the appellee against the appellant, on a promissory note dated the 6th of November 1855, for $2690.08, payable, at five months, to the plaintiff. The nar. contains two counts, a special count on the note, and an account stated; pleas, non-assumpsit and set-off. The note being admitted, the defendant offered in evidence five receipts, dated severally the li th, 18th, 16th, 17th and 18th of January 1855, for wketít delivered, and a receipt for corn, dated the 4th of March 1855, the aggregate value of which being proved, amounted to $901.15, for which the defendant claimed an allowance as set-off to the note, the execution of said receipts being admitted. The plaintiff to bar said receipts, proved that Cornelius Shriner owned two flour mills, one called the “Linganore Mills,” the other the “Ceresville Mills,”- that the Linganore mills were carried on by Cornelius Shriner in his life time, and the Ceresville mills were carried on by Cornelius Shriner and the plaintiff, as partners, under the name of'E. A. Shriner & Co., until the deathof Cornelius Shriner in September 1854, and that the defendant had large dealings with said firm, and that since that time the Ceresville mills were carried on by the plaintiff, Edward A. Shriner, with whom, also, the defendant had large dealings. The plaintiff further proved by Daniel Titlow, a competent witness, that on the 28th of February 1855, a settlement took place between the plaintiff and defendant, and being asked whether said settlement was in writing, said it was, when parol evidence in relation to if, was objected to by the defendant. The plaintiff then offered in evidence, the book of accounts between Cornelius Shriner, in his life time, and the defendant, and produced the account of said Cornelius Shriner and defendant, contained in said book, and the receipt thereon written; [145] and proved that the settlement referred to by him was that contained in said book, at. page 345, leger D. The accounts commence August 6th, 1853, and continue to March 1855, when a balance is thus struck: “Dr. Cr. 28th February, $3140.09 1464.00 By cash by check, 90.11 By cash per E. A. Shriner, 421.31 By his note a 30 days, 11,64.00 1st. settled. 3140.09 March 1855.—Received payment of all store, sadler’s bill to date, and all wheat delivered at Liuganore and Ceresville Mills to date. Georcíe Cramer.” The account runs five months after the death of Cornelius Shriner, and the books show no change in their title. The plaintiff then offered to prove that the settlement on page 345, was a settlement of all accounts between the plaintiff and defendant} and also of ail accounts between defendant and plaintiff, as administrator of Cornelius Shriner, except as to a quantity of grain; to which evidence, the defendant objected, and his objection being overruled, the defendant excepted, which constitutes the first exception. There is no reference in the receipt to the account under which it is written, except that it specifies “store hill and saddler’s bill,” which are items of the account. No person being named in the receipt, and no entries of wheat on the account corresponding with those claimed by the defendant as a set-off, there could be no application of (he words, “and all wheat delivered at Liuganore and Ceresville mills to date,” without the admission of parol testimony. The receipts offered by the defendant would be covered and cancelled by that of Cramer, dated March 1855, if the latter can be shown to apply to the transactions, between the plaintiff and defendant. This was a fact to be ascertained by the jury, from the entries on the ledger, the language of the [146] receipt, and any parol testimony calculated to explain it The evidence of Mr. Titlow, in this exception, does not contradict or invalidate the settlement as between any of the parties, but rather sustains the accounts, and benefits the defendant, by showing a quantity of grain was not included. “It is a familiar principle that receipts acknowledging the payment of money, may be explained or contradicted. This constitutes an exception to the general rule, giving a conclusive effect to written evidence, and it has been properly said that the exception was introduced for the general security and convenience to protect mankind from fraud.” 1 Gill, 89 to 91. 1 Greenleaf Ev., sec. 305. 2nd Bill of exceptions.—After the evidence offered in the first bill of exceptions, the plaintiff called the witness Titlow, and offered to prove by him, “there had been a settlement on the 2Slh of February 1855, of all accounts existing between the defendant and Cornelius Shriner in his life time, between the defendant and plaintiff as administrator of said Cornelius, and also of all accounts between the defendant and plaintiff, in his own right. Witness replied there had been such a settlement, that the defendant and plaintiff met at the store on that day, where witness was, and plaintiff asked defendant for a final settlement, and defendant said he had not his wheat receipts with him, and did not know the amount of wheat which he had delivered at the Ceresville mills. The plaintiff1 replied, he had a memorandum of the amounts, and produced a piece of paper, containing writing or figures, which he said contained a statement of the several amounts delivered by defendant, at said mills, and the settlement was made on the facts contained in said memorandum.” The defendant objected to any parol evidence in regard to the amounts and the items contained in said memorandum, without the production thereof or the proof of loss, but the court overruled the objection and allowed the evidence to go to the jury. According to our construction of this exception, it presents the single question, whether it was competent for the witness, [147] Titlow, to testify as to the settlement made between the parties, without the production of the memorandum used by them in the course-of the settlement. The memorandum was not at any time in the possession of witness, and although he saw it in the hands of the plaintiff, and that it had figures upon it, he does not appear to have had an)^ knowledge of its contents, except that derived from the statement of the plaintiff to the defendant. His testimony seems to be based entirely upon the declarations of the parties made to each other in his presence during the course of the settlement, and by these declarations alone he proves it to have been a settlement, which embraced the wheat delivered by the defendant to the plaintiff at the Ceresville mills, and for which defendant held receipts. The testimony was not offered to prove the contents of the memorandum, but to prove a settlement for the wheat included in defendant’s receipts, and it does not. seem to be objectionable, on the ground that it tended to prove the contents of the memorandum as material to the plaintiff’s case. (Decided December 20th, 1861.) It is difficult to see how the non-production of the memorandum, at the trial, could render the testimony of Titlow, as to the settlement and its subject matter, derivedfrom the declarations and admissions of the parties to each other, inadmissible. Assuming that the memorandum would have been evidence of the facts testified to by Titlow, a stronger case than seems to be presented in this exception, a well settled rule of law would still have rendered his testimony admissible. Where a written communication is accompanied by a verbal one, to the same effect the latter may be received as independent evidence, though not to prove the contents of the writing, nor as a substitute for it. 1 Greenl. Ev., sec. 90. Facts are sometimes proved by parol of which there is evidence in writing. 3 Md. Rep., 321. Concurring with the court below in its rulings on both exceptions, we affirm the judgment. Judgment affirmed.