Barringer & Rhodes v. Sneed , 3 Stew. 201 ( 1830 )

By JUDGE LIPSCOMB.

In this case a great many points have been made by the counsel for the plaintiffs in error. We shall however dispose of those we consider material, without examining those of minor importance. The first objection taken to the record is, that it shews that the Court below admitted secondar}' evidence to prove a written contract. The bill of exceptions in the case does not assume to set out the whole of the testimony, but it shews that on its being proven that the original contract between the parties was lost, the Court permitted a paper. that a witness swore was a true copy of the original, to be read in evidence. It is objected, that as there was a subscribing witness to the original contract, he should have been produced; it was proven that the subscribing witness was the son of the plaintiff below, and lived in the State of Tennessee. The rule of evidence was formerly very strict, as to the admissibility of any secondary proof of an instrument of writing. In the English Courts, for a great length o-f time, the rule was considered as well settled, that the evidence of the subscribing witness must be produced, if he was living; so that to let in proof of a written contract in any other way, it had first to be proven that the subscribing witness was dead, or circumstances from which his death would be inferred; in such case, proof of the hand writing was resorted to as the next best evidence. But in later times, the hardship and oppression of this rule has been so obvious, as to produce a great relaxation of its rigour; this too has been effected without violating any acknowledged principle of the law of evidence, the rule still prevailing in all its active influence, that the best testimony, which the nature of the case will admit of, must be produced. The rule now is, that if the subscribing witness is beyond the jurisdiction of the Court, so far as his testimony is concerned, lie may be treated as though he were dead. The reasonableness of this rule is so clear, it is a matter of surprise that its correctness should ever have been questioned. For why should a party be deprived of his rights for the want of the testimony of a witness. When the forum afforded him no means of commanding such tesimony, and while there were other means of proving the same facts as fully and satisfactory to the mind, as if the subscribing witness himself were present and occupied the stand. In the argument it was urged that it did not appear that the original was proven. It is true that the mode in which it was proven is not shewn by the bill of exceptions, but it is shewn that there was proof of the loss of the original, and proof that the paper offered was a copy. Now in favor of the judgment, we must presume that the two substantive facts of the loss of the original, and the faithfulness of the copy were proven according to the acknowledged ndes of evidence. The inability to procure the evidence of the subscribing witness, although it would much enhance the difficulty of proving a written contract, after the original has been lost, would certainly not preclude a resort to other modes of proof; and a sworn copy of the original, would be that kind secondary evidence, which would be most favorably received, especially when we are bound to infer that the witness swearing to the copy, had adequate means of knowing the truth of the fact to which he testified. On this point then we conceiye there is no error.

It is further"assigned for error that the Court refused to permit the defendants below, to prove by oral testimony, that the boat of the plaintiff was by agreement, to be at Mobile in eleven days. By referring to the written contract on which the action was brought, it is very obvious that the testimony attempted to be introduced by the defendant below, would have materially affected the terms in it expressed. How far oral testimony can be admitted to vary the terms of a written contract, is a subject on which the adjudications have not been uniform in the United States. For the reason that there is no Court of Chancery in some of the States; and in such States, a disposition has been cherished, until it has grown into a rule of practice, to admit any testimony that would be a ground of relief in a Court of equity. But in England and most of the States of this union, the current of judicial decisions has been uniform and uninterrupted, and the rule that oral testimony shall not be received, to alter or control the terms of a written contract, has been fully acknowledged. It is true this rule admits of some exceptions, without disturbing its generality; a contract in writing may be subsequently modified by a parol agreement. This could be done without infringing the rule. The written contract would be left inviolate, as expressing the true meaning and intention of the parties at the time it was entered into. In like manner if terms of a dubious or uncertain import have been employed in the written contract, parol evidence has been received to interpret the meaning of such terms.

In some cases too, if a fraud has been practiced by one of the parties, in not writing or reading the contract faithfully, or by promising to make alterations, and failing to do so, Courts of law have sometimes received parol evidence of such facts; but it is not usual in such cases to resort to a Court of Chancery for relief, if such a Court is accessible to the party aggrieved. Customs incidental to a particular class of contracts, have been permitted to he proven by parol, for the purpose of influencing the written contract. The case in first Peters,^a is to bo referred-' this class of cases. None of the exceptions we have noticed can brought to aid the attempt to produce parol testimony to vary the contract under consideration. There are no doubtful or ambiguous terms employed; there is-n0 imputation of fraud or mistake, and there was no attempt at proving any custom that would impose its incidents on this contract.* But it might well be doubted if the written contract had embraced the condition offered to be proven by parol, that is, that the boat was to be at Mobile in eleven days, if it would not have been an independent one, for which the party aggrieved would be left to his separate action.

The only remaining point to be considered, is the correctness of admitting the declarations of Barringer to be given in evidence, to prove that Rhodes was a copartner, after the copartnership, if any had existed, had been dissolved. It was formerly held that an acknowledgment of one of the firm, after the firm was dissolved, could take a case out of the statute of limitations and revive the debt against all the members thereof; but the true doctrine is now held to be, that such subsequent promise will only bind the person making it. When the former rule prevailed, and when a strong disposition was manifested by the Courts, to extend the influence of the acts of one of the members of a firm, after its dissolution, to every transaction in which the firm during its existence had been engaged, no adjudication even then, went so far as to authorize one of the members, after the firm had been dissolved, to create for the other members a new liability. More enlightened views now prevail, and rules more consonant with reason, have by a variety of decisions, regulating and diffusing the respective liability of the members of a firm after its dissolution, been established. In the case under consideration, if the declarations of Barringer after the dissolution of the supposed firm of Barringer Si Rhodes could be admitted, to prove the fact of.the former existence of such a firm, it would hold out to Barringer the powerful consideration of his own interest, to mould those declarations regardless of truth, so as to make Rhodes a joint debtor with himself. If he could by his own declarations, prove that at the time he entered into the contract with Sneed, Rhodes was his partner and jointly interested in the contract, he would thereby divide the responsibility he had incurred. But independent of the objee-'{ion'to Barringer’s declarations in this case on tbe score of interest, we take it to be the well settled rule at present, that the declarations of a partner after the dissolution the firm, can only bind himself. For the admission of this testimony, the judgment must be -reversed and the cause remanded.

Reversed and remanded.

Judge White, having presided below, and-Judge Col-•XiER having been of counsel, did not sit.

a 1 Peters Page 92.