Cunningham v. Wardwell , 12 Me. 466 ( 1835 )

Weston C. J.

— it is urged by tlie counsel for the defendant, that this is a bill by him drawn upon himself, but not accepted. No question is raised as to the form of the action, nor does it appear from the case, whether the defendant is charged as drawer or acceptor. The drawer undertakes that the bill shall be accepted. As it was here drawn upon himself, he sustained also the relation of drawee. And if in both capacities, which he assumed upon signing the bill, he undertook that the bill should be accepted and paid, of which the bill itself is evidence, it is accepted. A promise to accept an existing bill, if made upon an executed consideration, or if it influence any person to take or retain the bill, it is as to the person to whom the promise is made in the one case, and as to him whom it influenced in the other, a complete acceptance. Bayley on Bills, 103.

The bill sets forth the consideration, upon which it was drawn, namely, for a cargo of lumber furnished for the schooner, Sophronia, and it is drawn payable at sight, at her port of discharge. It is drawn to be paid absolutely, upon her arrival at her discharging port, without any other condition or qualification. She did arrive, and was discharged at Philadelphia; and there the bill was presented to the defendant and payment demanded. It was then due by the terms of the bill.

But it is contended, that by a previous parol agreement between the parties, the plaintiff assumed the sea risk of the cargo, and that if any portion of it was lost, by reason of that risk, the amount was to be rateably reduced. If evidence to this effect is admissible by way of defence, the verdict rendered for the plaintiff is to be set aside. It introduces a condition, which changes the liability of the defendant upon the bill. The consideration appears on its face. It was for the cargo furnished; and it is not pretended but that the cargo, for which the bill was drawn was delivered. There was no failure then in the consideration. The only question is, what did the defendant promise ? The written evidence is, that he promised to pay a fixed sum, upon the arrival of the vessel at her port of discharge. The parol evidence modifies and qualifies it, and renders it contingent, whether that sum was to be paid or not.

In Barker v. Prentiss, 6 Mass. 430, Parsons C. J. states the law to be that between the original parties, parol evidence may be received to contradict a written simple contract; and to show that there existed limitations and conditions, not reduced to writing. And in Hunt v. Adams, in the same volume, 519, the same doctrine is intimated ; but with some hesitation. In the same case, 7 Mass. 518, Sewall J. in delivering the opinion of the court, returns to a sounder and better view of the law of evidence, and recognizes the rule, that parol testimony is not admissible to vary or contradict that which is written, which in its nature is better and more certain. The same principle is confirmed in the leading case of Stackpole v. Arnold, 11 Mass. 27, which has steadily maintained its authority in our practice. It was enforced in the case of Small et al. v. Quincy et al., 4 Crreenl. 497. It would be'easy to multiply cases to the same effect, and to repeat the reasons upon which this rule is founded; but we deem it unnecessary. We are of opinion that the bill, upon which this action is brought, cannot be legally varied in its terms by the parol testimony adduced ; and that there is no competent evidence of the condition, upon which the defendant relies.

But even if admissible, it was within the powér of the parties to substitute one contract for another. Suppose it was agreed by parol, at the time of the sale of the lumber, that the plaintiff would take the sea risk to the port of discharge, they might make a mere contract, or the defendant might waive that condition. The bill itself is evidence of what was last agreed. As it has no such condition, although it might have been expressed in a single line, its omission is evidence, that it was no longer insisted upon.

Judgment on the verdict.