Brock v. Sturdivant , 12 Me. 81 ( 1835 )

Weston C. J.

The rule of law, that where parties have entered into a written contract, parol testimony of what has been agreed is inadmissible, is well established. It is a rule, not controverted in this case, and is uniformly enforced and practised upon in our courts.

The plaintiff attempted to prove his case by parol testimony; and he thus proved a contract for the delivery of from two to six hundred perch of stones. This was objected to by the counsel for the defendant, upon the ground that there was written evidence of what the parties had agreed. This was affirmed at the time of the objection, but proof that any written evidence existed, did not appear, until a subsequent stage of the trial. But it was all at length received, and we are now able to determine, from a view of the whole testimony, whether that which was objected to, was admissible at the time. The parties made a contract in writing, in March, 1833, wherein the plaintiff agreed to deliver for the use of the defendant, from one to three hundred perch of stones, upon certain stipulated terms. It was at the option of the plaintiff to deliver, under this contract, the less or the greater number of perch stated, or any intermediate quantity. That contract remained as evidence of what the parties had then agreed, nor was it attempted at the trial to vary, impair or explain it, by any parol testimony. But in the April, following the first agreement, the parties made a new contract by parol. It does not appear that they had it in contemplation to rescind the first; nor was there any reference thereto in the parol contract. They do not at all conflict with each other. They may both be enforced, without any violation of the principles of law. The defendant wanted more stones, than he had a right to demand under the first contract, and he made a second parol agreement with the plaintiff, to furnish the additional quantity.

The second was a new and independent contract, of which, and of its fulfilment on his part, it was competent for the plaintiff to offer parol testimony. As to that contract, he could offer no other. His declaration covered both contracts; but it was no prejudice to the defendant, if he proved but one of them. Our attention is called only to the competency of the testimony, and not to the regularity of the course, pursued by the plaintiff in other respects. There would have been a propriety in his proving his whole case in his opening ; but the reason assigned for his failing to do so is satisfactory, that his written evidence could not at that time be found. The defendant introduced the counterpart of the first agreement, the effect of which was to show, that all the stones were not delivered under the second contract. And then the plaintiff, having found the original, introduced that, also, by which the first contract was proved, of which the plaintiff had offered no evidence whatever in his opening. The whole case, with all the testimony which could bear upon it, was at length fairly before the jury, and they have passed upon its merits. We are satisfied that the testirfiony objected to was admissible as evidence of the second contract; and it does not appear to have been offered for any other purpose.

No other objection is taken to the ruling and instructions of the presiding Judge, at the trial, except as to the effect of the order drawn by the plaintiff, in October, 1833, in favor of Smith if Brown, and of the special acceptance of the defendant thereon. It is insisted, that this was evidence of a waiver, by the plaintiff, of any right to charge the defendant upon the ground of neglect and failure on his part, and of consent by the plaintiff that the business might be further delayed; and that the jury should have been so instructed. .But we are of opinion, that no such evidence is fairly deducible .from the order, or its acceptance. If the order itself proves any thing, it is, that the plaintiff claimed to have funds then due, in the defendant’s hands. By the acceptance, the defendant undertook to pay “ what may be due, after deducting former liabilities.” This implies, not that the plaintiff had then no existing demand, under the contract in controversy, but that the defendant had opposing claims, by way of offset. If any such existed, upon being filed, the defendant could have had the benefit of them, upon competent proof at the trial, but nothing of this sort was attempted. And whatever was to have been implied from the acceptance, it does not appear to have been satisfactory, either to the holder or to the plaintiff; as the order was given up by the one, and received back by the other.

Judgtnent on the verdict.