Jones v. Phelps ( 1858 )

Manning J.:

Two questions are presented for our consideration: Eirst, Whether the execution, of the chattel mortgage from Ross to Phelps & Staples, the plaintiffs before the justice, was proved so as to admit it in evidence; Second, Whether parol evidence was properly admitted by the justice to show the mortgage, which was executed by Ross in his own name, was not his mortgage, but that of the copartnership of Ross & Barry.

Minot T. Lane, the only subscribing witness to the mortgage, was the justice before whom the suit was brought, and it was insisted that this, of itself, was a sufficient reason for not proving the execution of the mortgage by him. We do not think so. The disability of Lane to be sworn as a witness in the cause was the act of the plaintiffs themselves in bringing the case before him. There is no analogy between the present case and those cases in which a witness becomes interested in the subject-matter before suit, and before any litigation is foreseen as likely to occur. Here the disability commences with the litigation, and is occasioned by it. Whether it would be different if the witness was the only person before whom the suit could have been brought, it is not necessary now to decide, as the question is not before us.

The justice also erred in admitting parol evidence to show the mortgage was the mortgage of Ross & Barry, and not the individual mortgage of Ross. There was nothing on its face to warrant the testimony. It did not purport to convey partnership property, or to be given to secure a partnership debt, or to be made for and on account of the firm of Ross & Barry. Without something of the kind appearing on the face of it, to lay a foundation for the parol evidence, it was clearly inadmissible. The legal effect of a written instrument, perfect in itself, and unambiguous in its terms, can not be changed by parol evidence.^*

The justice erred on both grounds, and the Circuit Court in the affirmance of the justice’s judgment; and both judgments must be reversed, with costs.

All the Justices concurred.

* See Adair vs. Adair, ante, p, 204