Criss v. English , 26 Md. 553 ( 1865 )

Bowie, C. J.,

after stating the facts of the case, as on pages 554 to 560, delivered the opinion of the Court as follows :

The admission of the evidence offered by the plaintiff, and the instructions of the Court, at his instance, based upon that evidence, virtually decide that the recitals in the agreement, were not so material to the obligation of the contract, that a variance in any part of it would invalidate it; but that such variances were susceptible of explanation by parol, and the identity of the thing which was the subject matter of the agreement, being thus established, the plaintiff might recover for the breach, of the contract respecting fhe mortgage.

The subject matter of the contract in this instance, was a mortgage of a certain William Morris, for the sum of $1,000, executed by a prior owner, on a lot of ground in the city of Baltimore, which was described as conveyed to John Withers on the day of the date thereof, (7th of Angus*, 1852,) by J,hn Clark and wife at the request of Alexander Kelly, to whom the same belonged.

The obligors reciting that John Withers had loaned them the sum of $10,000, payable in ten years, to the 15th of July, 1852, etc., and holds as security therefor “a piece of land in the city of Baltimore, which was conveyed,” etc ; and whereas, there now exists a mortgage on said land in favor of William Morris for fhe sum of $1 000, executed by a prior owner thereof, and not yetdue, and which the present holders of said mortgage refuse to receive prior to its maturity, in consideration of the premises, and of the said sum of $10,000, so loaned to them as aforesaid, thereby promised that at the maturity, or earlier if possible, to pay or take up the said mortgage debt, and procure a release of the same. The testimony offered on the part of the plaintiff, proved all the leading and important features of the description ; the mortgage was the principal in this instance, and the land the incident. The ex-tinguishment of the mortgage was the object of the promise, the breach of that promise the cause of action, and the variation in the time or mode of conveyance of the land affected in no way the rights of the parties. It is a case of “falsa demonstration

“Every application of the maxim, implies that a mistake has occurred in the use of language. In all such cases the legal question is, conceding a mistake, is the intent clear upon the whole language employed? (Wigrarn on Ext. Ev., 99.) If, notwithstanding the mistake, the intent remains clear, the mistake is to be disregarded even at law, and there is no occasion to seek a correction of the instrument, by the aid of equitable principles.” Barr vs. The Broadway Ins. Co., 16 N. Y. Rep , 269, 274.

Neither Wesley vs. Thomas, 6 H. & J., 27, nor Newcomer vs. Kline, 11 G. & J., 471, cited by the appellants to the contrary, bear the remotest relation to the case fore us. Those were clear cases of equitable jurisdiction, in the former of which, it was held that the deed given for a fixed consideration, was not to be impeached by parol proof, without an allegation of fraud : and the latter sustained an application, to reform a single bill, by inserting the word “dollars,” because the complainant had not an adequate remedy at law.

The admissibility of the evidence excepted to by the defendants, explaining the recitals of the agreement, and proving the identity of the subject matter, is sustained by the general rules of evidence and a number of adjudged cases. Vide 1 Greenlf. Ev., ch. 15, sec. 285, 282. Frantz vs. Smith, 3 Gill, and authorities there cited.

That a part of the description may be rejected eg surplus-age, is shown by the case of Jackson, ex dem McNaughton, vs. Loomis, 18 John. Rep., 86. 19 John. Rep., 448, where the words “Lot No. 51,” part of the description were rejected, the description being sufficiently certain without those words.

The tendency of the testimony thus offered by the plaintiff was not to contradict, alter or vary the written contract, but explain that which was uncertain and obscure, and identify its subject.

^* ( Decided July 12th, 1865.)

The testimony offered on the part of the defendants, bad a directly opposite tendency ; its object as indicated by the prayers based upon and offered in connection with it, was to convert a contract, which was a ¡trimary, absolute obligation, into a secondary and collateral one. In other words, to show that a contract purporting to be originally and equally binding on all the obligors, entered into for a consideration enuring to the benefit of all, was in fact., only an original obligation as to the first obligors, and without consideration as to the rest. Such testimony certainly conflicts with the elementary principles of evidence. 1 Greenlf. Ev., ch. 4, sec. 87. 6 H. & J., 435, 444. Wesley vs. Thomas, 6 H. & J., 24. 2 Md. Rep., 35.

The first and fourth prayers of the defendant being founded on the hypothesis that parol proof might be admitted to change tire character of the agreement, were properly rejected, ai.d the second and third operating upon the testimony7 offered by the plaintiffs, and declaring it inadmissible for the purposes offered, were properly overruled, as we have shown, in otir consideration of the character of that testimony, and the prayers of the appellee founded on it.

Judgment affirmed,