Bunce v. Beck

Wagner, Judge, delivered the opinion of the court. The controlling question in this case relates to the action of the Circuit Court in admitting testimony. It seems' that Preston Beck, Jr., being domiciled at Santa Fe, New Mexico, died in the year 1858, and left a will by which be gave bis estate to bis kindred, nine in number. Administration was taken upon bis estate at Santa Fe, and also in Cooper county in this State. As a large amount of personal assets, consisting for the most part of funds transmitted to this State by the administrator in New Mexico, bad accumulated in the bands of the administrator here in 1860, it was agreed by the parties claiming under the will that each party might take from the administrator 'the sum of ten thousand dollars, by giving an obligation, with surety, to repay the same with interest. Under this arrangement. Mrs. Juliet A — 277 — Beck, as guardian for her three children, who were named as legatees in the will, took from the administrator thirty thousand dollars, and gave an obligation for repayment, with William Limerick as surety. David IT. Silver, who claimed a share through his deceased wife, who was one of the legatees, also took out ten thousand dollars under a like obligation. This was in the year 1860. By a construction put upon tíre law of New Mexico regulating successions, where the decedent left neither wife nor descendant, the father was forced heir to two-thirds of the estate, and. the power of disposition by will was limited to the third part of the estate. Acting under this view, Preston Beck, Sr., father of Preston Beck, Jr., in the year 1861 made a will bequeathing all his interest in the estate of his deceased son to J. P. Beck, the appellant in this cause, and appointed him executor. Preston, Sr., died in the same year. In 1862 J. P. Beck filed his petition in the Probate Court of Cooper county, setting forth his rights, as executor of Beck, Sr., to two-thirds of the estate of Beck, Jr., and also his right, as legatee, to one-ninth of the remaining third of said estate, and praying for a decree establishing the rights of all parties to said estate. On the hearing of the petition, the Probate Court decreed that J. P. Beck, as executor, was entitled to the two-thirds of the estate, and that the several legatees mentioned in the will of Preston Beck, Jr., were each entitled to one-ninth of the remaining third of said estate. Prom this decree Mrs. Juliet A. Beck and D. H. Silver appealed. Mrs. Beck, as executrix of her deceased husband, had prosecuted a claim against the estate of Preston Beck, Jr. This claim was allowed by the Probate Court, and amounted to $21,336.87. J. P. Beck disputed this allowance, and was about to institute proceedings to set aside the same. The right of Mr. Silver to a share in the estate was also in dispute, J. P. Beck insisting that, according to the law of New Mexico, the right of Mrs. Silver as legatee, upon the death of herself and child, passed to collateral kindred, to the exclusion of her husband. And in the meanwhile the administrator in Cooper county had commenced suits against Mrs. Beck and Mr. Silver, and their respective sureties, upon the obligations made to repay the — 278 — advancements out of the estate, as above mentioned. Pending-all this litigation a treaty for compromise was opened, and resulted in an amicable settlement between them. The terms of the agreement were reduced to writing. According to the written agreement Beck withdrew his opposition to the claim allowed to Mrs. Beck, as executrix of her husband, and consented that she should receive the same from the estate. Mrs. Beck, on her part, admitted the claim of "Beck to two-thirds of the estate and one-ninth of the remaining third, and agreed to dismiss her appeal and leave the decree of the Probate Court in force. A similar compromise was effected with Silver. When the settlements were made, Beck gave to Mrs. Beck and Mr. Silver, each respectively, a written letter addressed to Bunce, administrator, stating- the terms of the agreement, and authorizing Mm to deliver up to the parties “ any papers, notes, or documents that will not infringe on my two-thirds,” etc., and to desist from the further prosecution of the suits for any money allowed in the settlements. Upon the presentation of these letters, and certain verbal representations made by Mrs. Beck and Silver, Bunce dismissed the suits, and in January, 1866, presented for settlement to the Probate Court Ms account as administrator, in which he claimed credit for the obligations of Mrs. Beck and Silver, as having been delivered up on the order of Beck. These items of credit were objected to by Beck, but were allowed by the Probate Court, and Beck appealed to the Circuit Court. The Circuit Court gave judgment for Bunce, which, on appeal, was affirmed in the District Court. On the trial certain evidence- was introduced on the part of Bunce, which was objected to as inadmissible, on the ground that it tended to alter and contradict the letter addressed by Beck to Bunce, and which writipg, it is contended, did not authorize his action in dismissing the suits and delivering up the notes. The questions put to the witnesses asked .them directly what Beck said concerning the letters and their meaning. The witnesses answered that after the letters were received, and before they were delivered to Bunce, they had conversations with Beck, — 279 — and desired him to explain them so that they conld be understood, and he replied that Bunce was a man of sense, and would understand them, and would give up the notes on the letters ; that if he did not do this he would have no sense. ITe assured Mrs. Beck she should have no more trouble about the note. To Silver he said that Bunce, on the presentation of the letter, would not refuse to surrender up the note and dismiss the suit; and that if Bunce did so refuse he would go to Boonville in person and have the business settled as understood between them. And after the suits had been dismissed he expressed himself as gratified at the result. The inquiries were made and the responses given with a view to show what interpretation Beck placed upon the' letters which ■contained his view of the agreement, and are certainly, in some particulars, at variance with it. It is an established rule that oral testimony is not admissible to vary or explain written instrur ments. The principle is nowhere better laid down than by Green-leaf, who says that “where parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such-engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of the undertaking, was reduced to writing ; and all oral testimony of a previous eolloquhim between the parties, or of a conversation or declarations at the time when it was completed, or afterward — as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties — is rejected.53 (1 Greenl. Ev. § 275.) - Phillips tersely enunciates the rule: “It is a general rule that extrinsic evidence cannot be admitted to contradict, add to, subtract from, or vary, a written instrument." (2 Phil. Ev., Edw. ed., 637.) The cases in this court are uniform, sustaining the same doctrine. (Ashley v. Bird, 1 Mo. 640 ; Lane v. Price, 5 Mo. 101; Woodward v. McGaugh, 8 Mo. 161; Gooch v. Conner, id. 391; Cockrill v. Kirkpatrick, 9 Mo. 697 ; Jones v. Jeffries, 17 Mo. 577.) So, it has been held that parol evidence is not admissible to prove how a written con — 280 — tract was understood by either of the parties, in an action upon it at law, in the absence of any fraud. (Bigelow v. Collamore, 5 Cush. 226 ; Harper v. Gilbert, 5 Cush. 417; Gould v. Norfolk Lead Co., 9 Cush. 338, 345.) The court, however, where the meaning is doubtful, will, in proper cases, receive evidence in aid of its judgment. (Hutchinson v. Bowker, 5 Mees &; W. 535.) And where it is doubtful whether a certain word was used in a sense different from its ordinary acceptation, it will refer the question to the jury. (Simpson v. Hargitson, 35 Leg. Obs.172.) But where a written memorandum of a contract does not purport to be a complete expression of the entire contract, or a part only of the contract is reduced to.writing, the matter thus left out of the writing may ■ be supplied by parol evidence (Rollins v. Claybrook, 22 Mo. 405; Moss v. Green, 41 Mo. 389) ; and stipulations and agreements subsequent to the execution of the writing are not within the rule. Parties may, by a subsequent parol agreement, upon a sufficient consideration, change the mode of payment or other terms of their written contract; or they may discard it altogether. (Lord v. Treadwell, 3 Fairf. 441; Bailey v. Johnson, 9 Cow. 115, 118; Trumbo v. Cartwright, 1 Marsh. 582; Perrine v. Cheeseman, 6 Halst. 174.) And it makes no difference, it appears, how soon after the execution of the written contract the parol one was made. If it was, in fact, subsequent, and is otherwise unobjectionable, it may be proved and enforced.' Thus, where the parties entered into a contract in writing regarding the sale of personal property; and immediately after it was signed the vendee said he wanted a written indemnity against all claims on a portion of it, to which the vendor replied he would not give him a written indemnity, but that he had sold him the whole and would see him out in it, it Was held that this was a valid promise of indemnity, and, having been made after a written contract, it might be sued upon and a recovery had, and was perfectly admissible in evidence. (Brewster v. Countryman, 12 Wend. 446; S. P. Richardson v. Hooper, 13 Pick. 446.) In the present case it clearly appears that the parol authorization relied upon was made after the written agreement — 281 — was signed by the parties, and, if otherwise unobjectionable, would be, competent according to the above rule. But the difficulty in the way is, that it does not appear by the record that the parol orders given by Beck for the dismissal of the suits Avere independent of the written letters, but that they were explanatory of, and in some instances contradictory of, theiri. If Beck, independent of the Avritings and outside of them, orally told Mrs. Juliet A. Beck and Silver to tell Bunce to dismiss the suits because a compromise had been effected, the evidence would have been entirely competent, and Avould have amounted to a full justification of Bunce’s action in the premises, and Avould also have constituted an estoppel in Bunce’s favor against future liability. That such was actually the fact would seem inferable from Beck’s expressing his satisfaction at Ayhat Bunce had done after the suits were dismissed. But the evidence Avas clearly incompetent and inadmissible in the shape in which it is presented in the record, and the judgment will therefore be reversed and the cause remanded for a new trial in conformity AYith this opinion. The other judges concur.