Hanchet v. Birge

"Dewey, J.

As evidence offered to vary or control the written promise made by the defendant, which is now sought to be enforced in this action, the deposition of Lovatus 1’. Noble is incompetent. It would be in direct violation of the rules of evidence, which are now well settled, and familiar to us all. Stackpole v. Arnold, 11 Mass. 32. Hunt v. Adams, 7 Mass. 518. Trustees, &c. v. Stetson, 5 Pick. 506. Spring v. Lovett, 11 Pick. 417. Wakefield v. Stedman, 12 Pick. 562. St. Louis Perpetual Ins. Co. v Homer, 9 Met. 39. Adams v. Wilson, (ante, 138.)

The defendant’s counsel, aware of the objection to the evidence, if offered to control or qualify the written promise, insists that it may avail the defendant, as evidence of declarations of the plaintiff, acted upon by the defendant, and by means of which he has been misled; and that, relying upon the oral promise of the plaintiff, he forbore .to take the same prompt measures to have the payment of the note enforced against the principal, which he otherwise might have done. There is an apparent equity in this line of defence, which, if it could be sustained without overthrowing the salutary rule, that the written contract cannot be controlled by oral evidence of conditions and stipulations of defeasance of the promise, or discharge of the same, not contained in the written agreement, would entitle it to a favorable consideration, But the evidence here offered is directly in conflict with the absolute, unqualified promise of the defendant, at all events, to pay the plaintiff the sum of ninety dollars, in five months from the date of the instrument. The defendant proposes to show, by oral evidence, that at the time when the agreement was made and the written promise was signed by him, there was a condition annexed to the same. But if such condition was a part of the agreement then made, it might and ought to have been inserted in the written agreement. No reason exists why it should not be, and the policy of the law and the rules of law alike require it.

The cases of stipulations made by parties, after the giving of the note or contract of the party, calculated to mislead a surety in reference to a liability already assumed, and which have been held to discharge the surety, were not open to the objection that exists in the present case. To allow this defence to avail, upon the ground we are now considering, would be virtually to abrogate the rule that the written contract is to be taken to be the whole extent of the engagement of the parties, and that all the stipulations then existing in relation to such agreement are inserted therein.

It does not add to the strength of the defence, or vary 'the rule of law, that the proposed evidence is that of the admissions or declarations of the plaintiff. They are only admissions of an oral contract made at the time of the execution of the written contract; and if competent evidence, and the witness deposing thereto is fully credited by the jury, the testimony will establish nothing more than a verbal agreement made concurrently with the written contract, ingrafting upon it a new stipulation, materially changing the nature of the promise.

The court are of opinion that the evidence was incompetent, and therefore properly excluded.

Judgment on the verdict for the plaintiff