McCreary v. McCreary , 5 G. & J. 147 ( 1833 )

Stephen, J.,

delivered the opinion of the court.

This was an action of debt instituted in Harford County Court, by the appellant against the appellee, to recover a sum of money due on a single bill. The defendant pleaded as a set-off, that the plaintiff was indebted to him in several sums of money of a larger amount, for sundry goods and chattels before that time sold and delivered, for money had and received, for money lent and advanced, for the use and occupation of a certain messuage and land thereunto appertaining, and upon an account stated; and also for the use and possession of several horses, cows, carts, and other necessary farming utensils. To this plea the plaintiff replied, that he was not indebted to the defendant in manner and form as the defendant had alleged; and also that at the time of the impetration of the original writ in this cause, the defendant was indebted to the plaintiff’ in several large sums of money, for money paid, laid out, and expended, for the use of the defendant and at his special instance and request, for goods and chattels sold and delivered, for work and labor, and for sundry matters properly chargeable in account, which sums of money, or so much as may be equal to defendant’s claim, he prays may be discounted out of the money mentioned in said pleas. To this replication, the defendant rejoined the plea of limitations. Upon the trial of the cause, after the plaintiff had read in evidence to the jury the single bill, the defendant offered in evidence, a certain deed of covenant entered into between him and the plaintiff, containing sundry stipulations, and among the number, one to pay all debts and claims that may be standing against him, the said Benjamin, at the date thereof; and also; offered in evidence a schedule? and valuation of sundry articles of personal property; at the foot of which was the following statement, made and signed by the appraisers. “ The I7th of May, 1830. Be it remembered, that Benjamin McCreary, and James McCreary, both of Harford county and State of Maryland, having called on us the subscribers to value the horses, cattle and hogs of the said Benjamin McCreary, which the said James McCreary is to take, hold and possess as his property, and only use at the above valuation. In witness whereof, we have hereunto subscribed our names, this day and date above written,” and proved that the articles contained in said schedule, were delivered over at said valuation to the plaintiff, and that the lease or covenants were executed, and appraisement made, and property delivered over, at the same time. The plaintiff then offered to prove by the appraisers, that at the time the property was appraised and delivered over to him, it was agreed between the plaintiff and defendant, that the value of said property should be applied by the plaintiff, to the payment of the outstanding debts of the defendant; to the admissibility of which evidence the defendant objected, and the court sustained the objection, and rejected the testimony as inadmissible.

Whether or not, the court below were right in rejecting the testimony so offered to be given to the jury, is the question now to be decided. The appraisers’ statement amounts to nothing more than a written declaration, that they had been appointed by James and Benjamin McCreary, to value the specified property, and that James McCreary had agreed to take it at the valuation so made by them. In what manner this valuation was to be paid, is not stated by the appraisers. It is therefore considered that no principle of law, or rule of evidence, would be infringed or violated by the admission of parol proof, to ascertain that fact, about which the statement is perfectly silent. The articles mentioned were to become the property of James McCreary when paid for at that valuation; but whether they were to be paid for in money or in any other manner, *s not stated. Even if this were the case of a written contract signed by the parties themselves, the authorities are clear, that parol evidence is admissible to prove any collateral, independent fact, about which the written agreement is silent; because such proof is perfectly consistent with, and does not in the least tend to contradict, vary or explain the written instrument. Thus it is said in Philips Ev. 497, “ though an ambiguity apparent on the face of a written instrument cannot be explained by extrinsic evidence, yet where a question arises, as to the general intention of the parties, concerning which, the instrument is not decisive, it has been held that proof of independent facts, collateral to the instrument, may be properly admitted. Thus in the case of King vs. Laindon, where on a question between two parishes, respecting the settlement of a pauper, it appeared that the pauper agreed to serve a person three years to learn the business of a carpenter, and evidence was admitted at the sessions, that at the time of making the agreement, the pauper agreed also to give a sum of money as a premium to be taught the trade; that he paid the money, and that he was not to be employed, nor was he employed in any other work, than that of a carpenter; the court of Kings Bench held, that the evidence was properly admitted, as it was not offered to contradict the written agreement, but to ascertain an independent fact, collateral to the written instrument, in order to explain the intention of the parties, the instrument being in some measure equivocal.” So, in 3 Stark. Ev. 1047, and 1050, it is said, “it may be shown that a parol contract was made, independently, wholly collateral to, and distinct from a written one made at the same time. In such cases the parol evidence is used, not to vary the terms of the written instrument, but to show either, that it is inoperative, as an entire and independent agreement, or that it is collateral and irrelevant.” And in page 1050 in a note it is stated:—“In many instances the terms reduced to writing, may constitute but a small part of the real contract. Suppose A to let a house by parol to B, for two years, and that at the time of the parol agreement, a stipulation as to the furniture is made, for convenience of calculation in writing, and that at the foot of the account is written : cc B to take the furniture at the above valuation,” it would be difficult to contend, that B would be bound to buy the furniture, although A refused to let him occupy the house, and that B would be concluded by the written part of the engagement from showing the real condition annexed to it.” This court are of opinion, that the court below were right in refusing the plaintiff’s prayer, but erred in the opinion and direction to the jury, given in the second exception. In that exception the defendant, in addition to the evidence offered in the first hill of exceptions, offered to prove by a competent witness, that he heard the plaintiff say sometime about the first of June, after the execution of the covenant referred to in the first bill of exceptions, that he had received the defendant’s farm and personal property, on the agreement that he should maintain the father and his mother for the use of said property, and to pay $20 per year on account of the stock and other personal property; he the plaintiff was to pay all his father’s debts for the use thereof; and if the defendant, his father, should die shortly after that agreement, that the property appraised by the appraisers, was to be retained by him, and to stand in bar, between him and his brother. Whereupon the plaintiff prayed the direction of the court to the jury, that if they believed the testimony, the plaintiff is entitled to recover; which direction the court refused to give, but directed the jury, that if they should believe from the evidence that the plaintiff was to have the use of the personal property, upon an agreement to pay the debts of his father, the defendant, and that the debt which is the cause of action in this case was included among those to be paid, that then the plaintiff is not entitled to recover; but if the jury believe, that it was not to be thus paid and settled, but was intended to be excluded from the number of those to be paid, that then the plaintiff was entitled to recover.

In this opinion we think the court below erred in their direction to the jury, because the defendant was not entitled to avail himself of the benefit of the evidence given in this exception, under the pleadings in this cause. The agreement, to prove which the evidence was offered, being the pi'oper subject of a plea in bar, by way of accord and satisfaction, and not admissible in- evidence under the issues in this cause. For the same reason, we think the court below erred in the opinion delivered by them in the third exception. The agreement therein offered to be proved, being properly pleadable as aforesaid in bar, and not admissible in evidence under the pleadings in the cause. We also think that the court below were right in refusing the plaintiff’s prayer, but erred for reasons similar to those already expressed in the direction given by them to the jury in the fourth exception, and reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.