Underwood v. Simonds

Shaw, C. J.

The rule of law is well established, that parol evidence cannot be admitted to alter, vary or control a written contract, nor to annex thereto a condition or defeasance not appearing on the contract itself. The rule is founded on the long experience, that written evidence is so much more certain and accurate, than that which rests in fleeting memory only, that it would be unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to control and vary the stronger, and to show that the parties intended a different contract from that expressed in the writing signed by them. Hunt v. Adams, 7 Mass. 518. Curtis v. Wakefield, 15 Pick. 437. Moseley v. Hanford, 10 Barn. & Cres. 729. St. Louis Perpetual Ins. Co. v. Homer, 9 Met. 39.

*278The proposed defence would consist in proof, by parol evidence, that a condition was annexed to the payment. By the terms of the note, the defendant promised to pay the plaintiff absolutely one hundred and fifteen dollars; by the parol evidence, he desired to prove that he was to pay it, on. condition that he could collect the Gibbs note.

The evidence had no tendency to prove want of consideration, or failure of consideration. If the plaintiff guarantied the goodness of the Gibbs note, for a good consideration, and it had proved bad, that would be in the nature of .a failure of consideration. Suppose two horses sold for fifty dollars each, and one note taken for both, and one of the horses is claimed and held by a third person, by a paramount title ; as there is an implied warranty of title, in the sale of a chattel, here there would have been a failure of consideration pro tanto, and this might be proved by parol evidence. Parish v. Stone, 14 Pick. 198. Harrington v. Stratton, 22 Pick. 510.

As to the seventy dollar Gibbs note, it was payable to the defendant, and the legal title was in him. He held it in trust for the plaintiff, before he gave his own note ; but when he gave his own note, that trust was extinguished, and he held it for his own use, and of course at his own risk, unless the plaintiff gave him some binding guaranty.

A stipulation, that the contract shall become void upon the happening of a future event, is a defeasance, and essentially a condition, and cannot avail to defeat the contract, unless such condition is made part of the written contract, or is otherwise proved by writing.

It was argued that the note was given for a special purpose ; but no rule of law permits parol evidence to prove a special purpose directly repugnant to the terms of the note. Hunt v. Adams, 7 Mass. 518. Adams v. Wilson, (ante, 138.) In the last case, it appeared that an assignee of the estate of an insolvent debtor, being called on by a creditor to settle his account and make a dividend, gave his own note for. the payment of the full account, unconditionally. On suit brought, he offered to show that when the note was given, it *279was agreed by parol, that he should not be bound to pay the whole, unless the estate in his hands was sufficient, and that in fact it proved insufficient. It was held that he could not prove such condition by parol evidence.

But it is said that the plaintiff proposed to bear part oí the loss, and that this should be taken into consideration, to reduce the damages. But this offer was not accepted, and no new agreement was founded on it. It was no release, discharge or acquittance, and there was no consideration, to give it the effect of a binding agreement. As an admission of the alleged original agreement, that this note should not bind the defendant, unless he should be able to collect the Gibbs note, it was open to the same objection. It would be, to prove a defeasance to a written contract, by parol evidence.

The objection is, not that the defence would not be a very ' equitable one, if it could be proved by competent evidence, and if the court could act upon the facts which it is offered to prove, as if they were facts judicially established. But it is a question of evidence. And the rule is established upon great considerations of expediency, as a highly salutary' one in its general application ; and we think it ought not to be frittered away, upon equitable considerations applicable to particular cases.

New trial granted.