Richardson v. Hooper

Wilde J.

delivered the opinion of the Court. The plaintiffs, at the trial, objected to the admission of the parol evidence offered by the defendant, but it was afterwards taken by consent, de bene esse, subject to the opinion of the Court. The question now is, whether this evidence is admissible, and sufficient to warrant a jury in finding the parol agreement under which the defendant claims the right to retain one half of the freight of goods from Monte Video to Valparaiso.

The objection is, that this parol evidence goes to contradict or alter the written agreement contained in the plaintiff’s letter of instructions to the defendant, and by him assented to in writing. But we are of opinion that the evidence steers clear of this objection, and goes to prove a distinct agreement, made after the letter of instructions had been assented to by the defendant, and depending on a contingency not within the contemplation of the parties when the written agreement was completed. Reed testifies that the writings were completed and signed at his counting-room, after which all went down to the wharf together, and while the vessel was getting under weigh, the parol agreement was there made.

Then it is objected, that if this was a new agreement, there is no consideration to support it, as by the written agreement the defendant was to have 2j per cent, on the sales and purchases in full compensation for all his services while absent; but this compensation is to be understood as extending only to such services as were within the contemplation of the parties at the time when the agreement was made.

The defendant was then doubtful whether he should go into Monte Video or not; he rather thought he should not; hut in the conversation at the wharf he suggested to the plaintiff that he was well acquainted with one Noble (a prin cipal merchant there) and that if he stopped there he could probably procure freight or passengers, if there were any going round Cape Horn. It may be fairly inferred, that it was by this suggestion the plaintiff was induced to offer to allow the defendant a share of the freight if procured, and that this was to be for additional services not referred to in settling the amount of compensation by the written agreement. Reed testifies that he supposed the defendant was entitled to half of the freight by the written contract; but as to this he is manifestly in an error.

On the whole, therefore, we think that the parol evidence is admissible, and that the testimony of Reed is sufficient, if believed, to support the defendant’s claim for a share, as it shows a new contract in that respect, distinct from the written agreement, and a sufficient consideration.

•/Veto trial granted