Davlin v. Hill , 11 Me. 434 ( 1834 )

Weston J.

The counsel for the plaintiff, in support of his objection to the testimony received at the trial, has cited Towle v. Bigelow, 10 Mass. 379; Stackpole v. Arnold, 11 Mass. 27; Rose v. Learned, 14 Mass. 154; Small v. Quincy, 4 Greenl. 497, and Hanson v. Stetson, 5 Pick. 506. We have examined these cases, and find them authorities in support of the principle, that parol testimony is not admissible to vary or contradict that which is written. It is a rule of law too well settled to be controverted. And if the testimony received is liable to that objection, it ought to have been rejected. But such does not appear to have been its character. The defendant has not been permitted, nor did he offer, to vary the note by parol testimony. By the written evidence in the case, it appears that in June, 1826, the defendant agreed to purchase, for a stipulated price, of the plaintiff, a certain piece of land ; the price to be paid to John Welles, on account of certain other land, which the plaintiff had agreed to purchase of him. On the eighth of April, 1S29, the day of the date of the note in suit, the plaintiff, by an instrument on the back of the foregoing agreement, under his hand, reciting that he had given to the defendant a deed of the land therein described, acknowledged that he had on the same day received therefor two notes of hand, describing the one in suit and another, “ upon a condition that the said notes shall be transferred to Joseph Lee, as agent for John Welles, Esq. agreeable to the within agreement.” It is manifest that the note, the plaintiff’s agreement in writing of the same date, and the instrument upon the back of which it was written, and which is referred to therein, were intended to be evidence of the stipulations of the parties, in relation to the transaction. It was not necessary that the contract should be written on one piece of paper. If written on several, connected by direct reference or necessary implication, they form together evidence of what the parties have agreed. Of this character was the contract proved in Hunt v. Livermore, 5 Pick. 395, cited in the argument. The suit was then brought upon a note of hand. The defendant produced two other instruments, a bond and a receipt of the same date, connected with the note by reference. The force of this authority is attempted to be avoided, upon the suggestion, that no objection was taken to the evidence exhibited by the defendant; but it is very manifest that if it had been taken, it would not have been sustained, as the court held that the note, the receipt and the bond should be construed, as if they were parts of one contract.

Theophilus Sargeant was a subscribing witness to the instrument, executed by the plaintiff. His deposition, objected to at the trial, is in the case. Correctly understood, it does not vary, but is in affirmance of the evidence in writing. It is true he says the notes were given upon the condition, that they should be transferred to Joseph Lee, omitting his capacity as agent, but as he refers to the written agreement, in which his agency is stated, it must be considered also as implied in his deposition. Two receipts, showing payment of these notes to Lee, received in evidence, were also objected to. That which related to the note not in suit, may be considered as irrelevant, but came into the case, not as bearing upon the note in question, but because it was written upon one of the instruments in evidence. If the jury examined it, it had no tendency to affect the case. The other receipt was evidence of payment of the note to the party, appointed to receive it. But as wo place the decision of this cause upon other grounds, the effect of this testimony becomes unimportant. The objections taken at the trial to the evidence received, were in our opinion properly overruled.

The note in suit was given upon the condition, that it should be transferred to Lee, as the agent of Welles. This we must regard as a condition precedent to the right to call upon the defendant for payment. It has not been performed ; and the objection is fatal to the action. What circumstances of mutual convenience produced this arrangement, it is not material to inquire. It is sufficient to know, that such was the agreement of the parties, who wmre competent to settle its terms ; and no fraud or imposition is imputed to the defendant. It was more convenient for him to pay the money to Lee, with whom he had dealings ; and he had a right to stipulate for the privilege of doing so. If the plaintiff has made a bargain with Lee, with which he is dissatisfied, or if he has confided to a verbal contract with him, when a written one only could be enforced, these circumstances cannot vary or affect the obligation of the agreement, on the part of the defendant. It results that the Judge was right, in withholding the instruction requested that the plaintiff was entitled to recover.

Judgment on the verdict.