Allen v. Sowerby

Stewart, J., delivered the opinion of the Court. There is no reference in the record to the 36th Rule of Baltimore City Court, according to which the appellee insists the exceptions were not prepared, and submitted' to the Court during the term at which the case was tried, and therefore has made the motion to dismiss this appeal. The record shows that the trial took place on the 6th November, 1871, and the bills of exception are signed and sealed by the Judge of that Court, on the same day— why they were not filed until the 12th January, 1872, does not appear. There is nothing to show they were not submitted at the same term at which the case was tried, and the 'motion to dismiss the appeal must be overruled. The appellee’s intestate instituted the action, [419] to recover, for certain services, alleged to have been rendered by him to the appellant, and the chief ground of dispute between the parties seemed to be, under what contract they were rendered. The letter introduced in evidence by the appellee, and conceded to have been written by the appellant, was relied upon by the appellee as constituting the contract between the parties. On the contrary, the unsigned written memorandum of a contract, together with the oral testimony connected therewith, was offered, by the appellant, to prove that the letter was merely intended as a provisional and temporary arrangement, to be consummated by a written contract, and that the provisions of the letter had, in fact, been superseded by a subsequent parol agreement between the parties. The refusal of the Court to admit this testimony, propounded in somewhat different forms, but substantially the same, constitutes the first and second exceptions, which may be disposed of together. There is no doubt, that according to the fixed and well established rule of evidence, parol contemporaneous testimony is inadmissible to contradict, or vary the terms of a valid written instrument. For wise purposes, in the administration of justice, this rule has been recognized, and in adjudged cases, where there seems to have been a departure, it has only been modified to explain, or supplement the loriiten terms, but in no instance, that we have seen, to contradict the provisions of the written instrument. Where the contract is not required by the Statute of Frauds, to be in writing, there is no difference between the parol contract in writing, or one that is in fact verbal, except in the protection afforded by the above rule of evidence, which regards it as furnishing greater facility and certainty of proof. * Either of them, not being a contract of record, or under seal, is treated as a contract by parol, and as such [420] distinguished from the contract under seal. The written contract, although not under seal, is considered, under this sound rule, as the best exponent of the intentions of the parties, and therefore it is not allowed to be contradicted by the inferior and less certain parol testimony. (Decided 20th February, 1873.) Without doing violence to this long established and useful rule of evidence, it has been held competent to prove by parol a distinct subsequent agreement, waiving, abandoning or modifying the terms of the writing, or to prove an additional swppletory agreement, by parol, by which something is supplied, that is not in the written contract. See Coates & Glenn vs. Sangston, 5 Md., 130; Atwell & Appleton vs. Miller, 11 Md., 361. The evidence offered in these exceptions was not for the purpose of contradicting the terms of the letter, which per se, did not purport to be a full and final contract between the parties, in regard to the matter referred to therein, but a partial agreement as to certain commissions. This did not exclude any additional or suppletory provisions which the parties might subsequently agree to, in order to render the agreement between them full and complete. Testimony to such effect was admissible, to be submitted to the jury with the other evidence to be considered by them, and its admission is not in violation of the rule to which we have adverted. We think the Court erred in the exclusion of the offered testimony in these exceptions. There was, of course, no error in the refusal of the appellant’s prayers, as the case then stood, with the testimony excluded under the previous rulings; but with its admission, although they were somewhat abstract from • their phraseology, yet considered, with the offered testimony admitted, they should have been granted. Judgment reversed and new trial ordered.