Potter v. Sewall , 54 Me. 142 ( 1866 )

Barrows, J.

The wholesome rule that a party shall not be permitted to introduce parol contemporaneous evidence to contradict or vary the terms of his own unambiguous written contract, is not to be departed from because the party, having mistaken the law, may find himself under legal liabilities which he did not contemplate when he entered into that contract. Especially, now that the party is by law a witness in jiis own case, should the rule be adhered to which precludes him from contradicting orally that which his own written admission in the instrument declared on has established as a fact in the case by which the rights of the parties are to be determined. ■

The defendant in his written contract with the plaintiff, entered into without fraud or mistake of fact, and upon a valuable consideration, has said in so many words that the property attached is the property of George Hart, the debtor, and by that writing he undertook and promised to do one of two things — either to deliver that property to the plaintiff within thirty days from the rendition of judgment in the suit against Hart, or to pay five hundred dollars. The judgment has been rendered, yet the defendant has done neither of the things which he thus agreed to do, but proposes to defend the plaintiff’s suit upon the broken contract by showing that he himself had a factor’s lien upon the property for money advanced to an amount exceeding its value.

The case in its essential circumstances is not more favorable to the maintenance of such a defence than was that of Drew v. Livermore, 40 Maine, 266, — where Livermore, having made advances towards the building of a vessel and taken a mortgage thereof, afterwards, when an officer attached the vessel for a debt of the builder, gave a receipt therefor to the amount of $500, and it was held that he could not avoid his liability thereupon for the debt and cost in the suit in which she was attached, by showing that his claim exceeded the value of the vessel, though he proposed also to prove that he denied the validity of the attachment when it was made, and signed the receipt under the advice of counsel that it would not preclude him from contesting it in a suit thereupon. The same mistake in matter of law was made by the receipter there as here. The same line of argument in defence was pursued in that case as in this. But, unfortunately for the receipters, it has been established by a series of decisions in this State that, where a receipt of this description has been given, the receipters are not to be regarded as the mere servants of the officer; that the officer is to rely upon their contract as his security, and not upon the property itself, (Waterhouse v. Bird, 37 Maine, 329,) and that he cannot rid himself of liability to the creditor by showing that the goods attached were the property of the receipter. Penobscot Boom Corp. v. Wilkins, 27 Maine, 350.

They must not, then, be permitted to evade their contract-with him, by proof of contemporaneous conversations inconsistent with its obligations. Men must not enter into written stipulations to do that which is inconsistent with their own rights in property, if they would not be held to have waived those rights, and to be bound by their stipulations.

In Bursley v. Hamilton, 15 Pick., 40, by the terms of the receipt, it would seem that the defendant merely became the* servant of the officer for the safe keeping of the property attached.

In all these cases, to avoid confusion, the particular terms of the contracts are to be regarded, and, by them, the rights of the various parties interested are to be determined.

Here, as in Drew v. Livermore, ubi sup., and in Smith v. Mitchell, 31 Maine, 288, it must be said of the defendant, "he entered into a written contract, the terms of which are clear and explicit. There is no suggestion that any fraud was practiced upon him, nor that he acted under mistake of fact in .relation to the matter. By that contract he must be bound.”

In that contract he admitted the attachment. The motion for the nonsuit, on account of the non-production of the writ and officer’s return thereon, was therefore rightly overruled, and, for reasons above given, the testimony offered was rightly excluded.

The defendant moved, in the Law Court, June term, 1866, to have the report (which was made up at the August term, 1865,) discharged, in order to permit him to prove what he says he has discovered since the last nisi prius term in this county — that the officer returned the attachment of the logs subject to his lien claim. Even if he could have been permitted, in the face of his own admission in the contract, to set' up the insufficiency or invalidity of the attachment, reasonable diligence would have enabled him to present ,the proof at the time of the trial. The action was entered at the December term, 1864. The trial did not take place until the third term, and two more terms subsequently elapsed before the filing of this motion. To allow it, under such circumstances, would go far towards making the needless vexations and delays attendant upon litigation interminable. We will set no such precedent for the indulgence of laches.

Judgment for the plaintiff.

CuttiNG, WaltoN Daneorth and Tapley, JJ., concurred.