Garten v. Chandler ( 1810 )

OPINION of the Court, by

Judge Logan.

On the 23d day of July, 1802, Chandler executed his note ^or l^e su!n °f twenty pounds, payable by the 1st day of October, then ensuing ; which note contains the following expression, viz. “ which sum to be paid in a at the time above mentioned, if required.”

Upon this note judgment was obtained at law against the obligor, who exhibited his bill enjoining the same ; and the only material allegation in the bill, is, that the - ,J , , , . c contract was to pay in a horse, ana that the drawer or the note made a mistake in the manner of writing it.

'j‘he answer denies the-allegation. But the drawer of the note however, and other corroborating evidence, proves that the contract was to he discharged in a horse. But it being a well settled rule, that parol evidence ought not to be admitted to contradict written evidence, except in cases oí fraud or mistake ; in such cases the fraU{j or mistake, should appear v'e#8|fevident, to coun- . , , . ...» teract the effect or the contract m writing.

The evidence of the drawer of the note is important in this case, but he seems to have been mistaken in his understanding of the case in several points. He states, that he mistook, and inserted the word u if,” instead of the word “ when.” To substitute the word when, in place of the vyord if and that part of the note would read, “ which sum to be paid in a horse at the time ~ ’ above mentioned, to wit, the 1st of October, when the required. This is too absurd to be admitted, m tne overthrow of the common import of a written contract. It appears, moreover, that this writing was read several times bei&re it was executed.

It is probable, that the general expectation was, from ■what passed between the parties, that a horse would answer the purpose oilhe ohligee, when the debt should become due, and under that impression, the witness may have been, and probably was mistaken. Be that as it may we think the evidence not sufficient to control the Writing.

Wherefore it is decreed and ordered, that the decree ot the circuit court be reversed and set aside ; and that the cause be remanded to said court, who are hereby dg rected to enter up a decree dissolving the complainant* injunction, and dismissing his bill with ten per cent, damages on the amount of the judgment and costs, &c.