Dunham v. Baker , 2 Day 137 ( 1805 )

By the Court.

The only question arising on this record respects the promise which the plaintiff, in his declaration, alleges, that the defendant made to call with his vessel at Hiannas harbour for the plaintiff, and him to transport to Norwich. It is contended by the defendant, that it was not competent for the plaintiff to prove any other, or different promise than is expressed in the defendant’s written contract recited in tire declaration ; and this promise is not there expressed. Of that opinion is the Court. The action is brought on a written contract, which is set forth at large ; and therefore, becomes the evidence of the plaintiff’s claim and of the defendant’s liability.

On the 5th of June, 1800, the parties contracted by two separate written instruments of that date. The defendant ■undertakes to have his schooner ready for a fishing voyage, at Norwich, the 12th of July, 1800, and let the plaintiff take her for four months ; on the part of the plaintiff, to go on the voyage, by himself or agent. The contract is mutual, and the promise of one the consideration for the other; and these promises being reduced to writing contain, in contemplation of law, the whole contract between the parties.

By the written contract, the defendant is to have his vessel ready at Norwich, on the 12th of July ; and the plaintiff promises to go on the voyage, by himself, or agent. He is to take the vessel at Norwich. But, by this promise, which the defendant is alleged to have made at the same time, the defendant is to call, with his schooner, at Hiannas har-bour, for the plaintiff, and him to transport to Norwich. This promise, if admitted, altogether changes the contract. on the part of the defendant ; for instead of the plaintiff’s being obliged to take the schooner at Norwich, on the 12th of July, which he has stipulated to do, by his written contract with the defendant, the defendant is bound to go, or call at Hiannas harbour, with his schooner, and bring the plaintiff to Norwich ; and if the defendant fails to do it, the plaintiff must be exonerated from his obligation to take the vessel at Norwich, on the 12th of July, 1800, and proceed on the fishing voyage. These contracts are inconsistent with each other ; and the contract of the defendant, which the plaintiff lias set forth in his declaration, must govern in the case.

The only consideration, which the plaintiff alleges for the defendant’s assumption to call for him, with his vessel at Hiannas harbour, and him transport to Norwich, is the defendant’s contract to let the plaintiff have his schooner at Norwich ; which also confirms the construction, that the written contracts set forth in the declaration, are the only contracts between the parties, which ought to be regarded.