Brown v. Hitchcock , 28 Vt. 452 ( 1856 )

The opinion of the court was delivered by

Isham, J.

The declaration in this case contains two special counts in assumpsit, and also the general counts. The contract was read in evidence, on the trial of the case, without objection. It appears from the case, that the defendant received from the plaintiff seven hundred and fifty-six pounds of palmleaf, under an agreement to manufacture it into hats as soon as he had worked up the material he then had on hand, or to return it to the plaintiff when called for. If the leaf was manufactured, it was to be accounted for at different prices. The leaf was never used for that purpose, and it appears that it became much injured while in the defendant’s hands, by heat and mildew. The plaintiff insisted that the contract was one of sale. The court held that it was one of 'bailment -merely, and to that ruling, exceptions were taken. We think the decision of the court was correct on that subject. As the leaf was never worked into hats, the question does not arise in the case to whom the hats would belong if they had been manufactured. It is obvious that, so long as the leaf was unmanufactured, it remained the plaintiff’s property, as the identical leaf was to be returned to him on demand. That is the express provision of the contract. While the leaf remained in that state, the duties and obligations arising out of the relation of bailor and bailee existed between them. That relation necessarily results from the fact that a property in the leaf, while in that state, remained in the plaintiff.

The testimony offered by the defendant to prove that an agreement was made, at the time the leaf was left with him, that it was to remain at the plaintiff’s risk, was properly rejected by the court. The written contract is certain and specific in its provisions; there is no ambiguity in relation to that matter that requires explanation. It is as incompetent for the defendant to change or alter the legal effect of that contract, as it is to change its language. On that particular bailment, the law imposed specific duties and liabilities. To change those duties, or to create different liabilities, by the introduction of that testimony, would add provisions to it not expressed in the contract. The general principle, that parol contemporaneous evidence cannot be received to contradict or vary the terms of a written agreement, will equally exclude all such evidence to vary its legal effect.

We perceive no objection to the admission of the testimony which was offered for the consideration of the jury by the plaintiff, as well as that offered by the defendant, in relation to the condition of the leaf when left, and the care subsequently exercised over it by the defendant; nor to the testimony in relation to the usage and custom in packing leaf for market, as also the necessity and custom of taking the leaf from the sacks and exposing it to air to prevent its becoming injured and valueless. In relation to all that testimony it may be observed, that it was not offered to control or in any way to affect the contract between the parties. Its object was simply to ascertain the character and degree of care which the defendant should have exercised, and that which he did exert over the property while it was in his possession. The question in issue was, whether the defendant had been guilty of negligence in taking care of that property while it was in his charge. On that question, the evidence was proper for the consideration of the jury, that the leaf was placed in a chamber selected by the plaintiff, and which he thought was suitable, and that leaf had been kept there in that manner without injury. It was proper also to show that the leaf was damp and in an unmerchantable condition when it was left, and that the injury arose from that cause, and not from the want of care on the part of the defendant. ' On the other hand, it was proper for the plaintiff to show that it was usual and customary to put leaf in sacks in a damp state for market, that it was usually bought and sold in that way, and also the necessity and custom of taking the leaf from the sacks and exposing it to the air. The defendant, being a manufacturer of leaf into hats, and having received this leaf for that purpose, is supposed to know what is necessary, and the kind of care required to preserve it. On that subject, contradictory as the testimony may be, it became a question for the jury to determine, under proper instructions from the court, whether the defendant exercised proper prudencp and care in taking charge of that property, while it was in his possession;

The court properly charged the jury that the defendant was bound to exercise ordinary care in preserving-the property from injury; not that care which the defendant exercised over his own property, but that care which men of ordinary prudence and judgment exercise over property of their own. Tailing the whole contract together, it is obvious that the bailment was one of mutual benefit. The plaintiff was to derive benefit from the disposition and manufacture of the leaf into hats, and the defendant in manufacturing them. It was ordinary care, therefore, that the defendant was bound to exercise over that property. The jury have found, by their verdict, that the defendant did not exercise that degree of care, and that the injury to the leaf was occasioned by it. We see no error in the decision of the court on the trial of the case; and the verdict of the jury is conclusive as to the facts. The exceptions allowed to both parties are overruled, and the judgment of the county court is affirmed.

The declaration, we think, can be sustained on this motion in arrest. It is very informal, and would be defective on demurrer, and there are also material variances between the proof and the declaration, but no objections have been taken of that character. Every reasonable presumption should be made after verdict to sustain the declaration; 17 Yt. 464. The motion in arrest is, therefore, overruled.