Batturs v. Sellers & Patterson , 6 H. & J. 249 ( 1824 )

Martin, J.

delivered the opinion of the court. This action was founded on a contract alleged to have been made by Appleton and Poor, as the agents of Richard Batturs, the appellant, with Abraham, Sellers ahd John Patterson, the appellees. At the trial,- the plaintiff read to the jury, as evidence of the contract, a bill of parcels, in the following words: “Baltimore, Nov. 14th, 1814. Messrs. Abr’nt, Sellers and John Patterson, bought of Appleton and Poor9 one bale superfine broad cloths, viz;

No. 87, 89, 90, 95, 96, 97, 98.

8 ps. Bl’k. 153s

83, 84, 91, 92, 4 Blue 78f

85, 86, 93, 94, 4 Green 70|

302¿ yds. 17. $5142 5&

Note 75 days,- to be dated on the delivery of the goods.” And proved, that the said bill of parcels, and also a pattern, card containing the samples of the cloths sold, which had been cut off from the same, and were -at part of the original quantity contained in the bale, were delivered to the appellees, and kept by them; that the said cloths were sold by the pattern card, and that the bale of cloths did, in all respects, correspond with the bill of parcels and card of samples. The plaintiff further proved, that Appleton and Poor tendered to the appellees the bale of cloths, as stated in the bill of parcels, and that they refused to' receive the same. The defendants then offered parol evidence to prove, that Poor, when he proposed to sell the bale of cloths to them, represented them to be superfine London cloths, and that he guaranteed them to be such, and that he stated if they were not London cloths the appellees should not be obliged to accept them, and it should be no contract; that the bale of cloths were not London cloths, but only tolerable Yorkshire cloths, and that London cloths are-of much inore value than Yorkshire cloths. They also offered to prove they did not agree to purchase by the pattern card, but purchased solely on the representation and guarantee that they were London cloths. To which parol evidence the plaintiff objected, but ilse court overruled the objection, and permitted it to go to the jury.

Whether the bill of parcels is written evidence of the contract, is not a question before us. By the decision of this court, on the former appeal between these parties, it was determined, that under the circumstance^ disclosed by the evidence in the case, Appleton and Poor were the agents of both parties; that the bill of parcels was evidence of the contract, and a sufficient memorandum, in writing, to take the case out of the statute of frauds.

Could parol evidence then be received to substantially change the contract thus reduced to writing?

This question is too well established to require exposition or authorities. It is not now open for discussion. That such evidence is-not admissible, has been sanctioned by almost every tribunal both in England and this country, and if there is any legal principle that is considered at rest, and which ought not to be again disturbed, it is that now presented to us.

Judge Thompson, at the last term of the Supreme Court of the United States, in the case of Renner vs. The Bank of Columbia, 9 Wheat. 581, observes, “It is said the effect of this testimony is to alter and vary, by parol evidence, the written contract of the parties. If this is the light in which it is lobe considered, there can be no doubt it ought to be laid, entirely out of view, for there is no rule of lavv better settled, or more salutary in its application to contracts, than that which precludes the admission, of parol evidence to, contradict, or substantially vary, the, legal import of a vyritten agreement.”

Whether parol evidence can be received to establish fraud, and thereby, under particular circumstances, avoid a contract made, in writing^ is a question upon which we give no opinion, because we think it is not presented by this, record. The parol evidence offered, was clearly intended to show a contract different from that in the bill of parcels; that the appellant, by tendering cloths, such as were described in the bill of parcels, was not entitled to reca ■ ver, but he ought to have tendered London broad cloths^, because*, by Ms contract,. he had guaranteed the cloths 3old to be of thcit description", and this addition to, or variation of, the written contract, was. to be proved by the parol evidence offered. Without torturing the language of the bill of exceptions, no other construction can be given to it.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED»