McCotter v. . Hooker , 8 N.Y. 497 ( 1853 )

I. Assuming that the man with whom the plaintiff's agent dealt was authorized to bind the defendant, no such contract was made as is set forth in the complaint. It is not a case of a mere formal variance which might be overlooked, but is an entire failure of proof. The general rule is that when a written contract is made, all previous conversations are merged in the writing. When a receipt is in the nature of a contract it is within the general rule, and is not liable to be varied by parol evidence. (Egleston v. Knickerbocker, 6 Barbour, 466; 2 C. H. notes, 1439; Howes v. Barker, 3 J.R. 509; 5 Cowen, 497; 5 Wend. 187; 14 Wend. 26.) When the cases speak of evidence being admissible to vary or explain a receipt, it is only intended that it is so with respect to the consideration; and with respect to that, the explanation which is admissible is such as is not contradictory to, but consistent with the instrument. (McKinstry v. Pearsall, 3 J.R. 319; 6Barbour, 463.) The receipt in this case contains no contract to deliver the goods at Chicago before the close of navigation that year, or at any time.

This is not a case where the contract can rest partly in writing and partly in parol, if there be any such case. SeeHowes v. Barker, 3 J.R. 509. There all the conversation between the parties preceded the giving of the receipt. They must be considered as merged in it.

But if the parol conversation can be added to the receipt, it falls short of making the contract declared on. The agent merely expressed an opinion, but made no agreement that the goods should be carried through to Chicago that fall. The agreement which the law would imply from the receipt is, that the goods should be carried through according to the usual course of transportation business, that is, as soon as they could be conveniently carried through. But the complaint does not count on such a contract, and it is immaterial to inquire whether it was broken or not.

I think the learned judge should have granted the nonsuit. There was no evidence tending to prove the contract set forth in the complaint.

II. If I am wrong here, I think the judgment should be reversed for refusing to allow the defendant's counsel to ask on the cross-examination, the plaintiffs' witness, whether he ever knew boats to leave Buffalo for Chicago or the upper lakes after the 18th of November in any year. The objection to it was, that the answer should be restricted to the year 1847, and so the court held and extended it. It forms the fourth exception in the case. The plaintiff had failed to prove the contract set forth in his complaint, and was obviously seeking to recover on some contract which the law would imply from the facts. The witness had resided in Buffalo one year and was engaged in the transportation business. It was important for the defendant to show, in this aspect of the case, the usual course of transportation on the canal and the lakes. The testimony had rendered it certain that this box could not be expected to arrive at Buffalo before the 19th of November. And if vessels never had been known to leave Buffalo for the upper lakes after the 18th of November, the law would not charge the defendant with any fault for not forwarding the box after that time. The testimony was clearly admissible, and highly important to the defendant.

If an express contract had been shown to forward the box that fall, I grant the evidence was immaterial, whether restricted to 1847 or not.

III. I am inclined to think that the testimony taken on the part of the defendant under §§ 353, 354, 355, 356 of theCode of 1848, ought to have been received, notwithstanding these sections had ceased to be in force when the cause was tried. The general rule as stated by Dwarris on Statutes, 676, and approved by Judge Cowen in Butler v. Palmer, 1 Hill, 333, is, that when an act of parliament is repealed, it must be considered, except as to these transactions, passed and closed, as if it never existed. (Smith on Statutes, p. 880, § 759.) The examination of the defendant's witnesses had been closed while the act of 1848 was in force. The witnesses may be presumed to have gone beyond the jurisdiction of the court. At any rate, they were not present at the trial, and the defendant's counsel rested upon their evidence as taken in pursuance of law. The right to take the testimony in a particular way had been executed. The witnesses were liable to punishment for perjury, if their testimony was false. The defendant had complied with the law as it existed and had incurred expenses under it. Nothing remained executory or inchoate. The whole was complete.

If that testimony had been received by the jury, it furnished a perfect defence to the action. Prior to the act of April 17, 1823, (L. 1823, p. 208, § 16, p. 215,) testimony in chancery was taken in secret before examiners, upon written interrogatories and cross interrogatories, and neither party was permitted to see the testimony until publication was passed. By the act last mentioned, the parties were allowed to be present and to cross-examine the witnesses. There was no saving clause in the act as to testimony previously taken, yet we know that in all cases where the testimony had already been taken according to the former practice, it was received and acted upon by the court.

I think the judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed.