Buckley v. Bentley

By the Court, Parker, P. J.

The principal question in this case is whether the indorsement upon the note by the defendant of the words, “ Notice of protest waived by me,” concluded the plaintiffs from showing that the verbal arrangement between the parties which resulted in the entry of those words on the note by the defendant, was that demand of payment as well as notice was waived—in other words, whether it was competent for the plaintiffs to prove that in the conversation prior to the entry of that waiver upon the note, it was expressly stated by the defendant and understood by both parties, that the note was not to be sent forward for demand and protest, and that the plaintiffs acted upon such understanding, and therefore omitted to demand payment of the maker. Although the arrangement then made was not a contract, because there was no consideration, and must operate if at all by way of estoppel in pais, still the question is what was the arrangement; and as the parties undertook to put it in writing, whether what was then written must not foe deemed the arrangement concluded upon, equally as though it had been a contract, and whether it was any more open to the plaintiffs to fall back upon the prior negotiations and conversations to ascertain what was agreed upon than if it were a full and complete contract.

The writing in this case was designed to foe the repository and evidence of the final conclusion of the parties, and hence it is within the reason of the rule, and I think within the rule itself, that all oral testimony of a previous colloquium between the parties must foe rejected. (1 Qreenleaf on Mo. § 275.) The reason of the' rule as stated by Lord Coke (5 Rep. 26) is that “ it would foe inconvenient, that matters in writing made on consideration and which finally import the truth of the agreement of the parties, should foe controlled by an averment of the parties, to be proved by the uncertain testimony of slippery memory.” “ The parties, by making a written memorial of their transaction, have implicitly agreed that in the event of any misunderstanding, that writing shall foe referred to as the proof of their act and intention.” (1 Murph. Rep. 426.) The propriety of the rule, and of its application to this case, is manifested by the contradictory statements of the parties, as to what was the conversation and arrangement which led to the entry of the indorsement upon the note; the plaintiff, Buckley, testifying that the defendant told him there was no use of sending the note forward for protest, while the defendant testified that Buckley asked him merely to waive notice of protest, and that he wrote the waiver on the note precisely as requested ; and that he did not say there was no use of sending the note forward for protest, nor that payment need not be demanded.

There could foe no doubt, I think, if this were a contract, that evidence of the colloquium which led to the entry would be inadmissible, especially for the purpose of modifying or changing the effect of what was expressed in the writing. Assume that the parties conversed about a waiver of demand and notice, and finally reduced their agreement to writing, which reads, £i Notice of protest waived by me if this were a contract upon sufficient consideration, it would scarcely be pretended that the plaintiffs in seeking to avail themselves of the contract in a court of law, would be permitted to go back of the writing and prove that the agreement comprehended a waiver of demand of payment, as well as notice of non-payment. It would not be the case of a contract resting partly in writing and partly in parol, when oral proof would be admissible to supply the deficiency in the writing; for manifestly the writing was intended to express the entire agreement. The parties have put the agreement which they made on the subject of what should be waived into writing, and are to be deemed to have given thereby full expression to their meaning, and hence parol evidence of their language contradicting, varying or adding to that which is contained in the written instrument, must be excluded. (1 Greeril. on Ev. §282. Renard v. Sampson, 12 N. Y. Rep. 561.) That there was no consideration for the agreement, cannot change the rule of evidence, in regard to what shall be competent proof of what the agreement was. It is a rule of evidence applicable to the mode of proving a fact, and whether that fact is a contract or a waiver, it seems to me can make no difference with reference to its applicability. This principle was held in Halliday v. Hart, (30 N. Y. Rep. 474.)

[Broome General Term, January 22, 1867.

If the principle adverted to applies to this case, the written entry on the note must be taken as the evidence of what the parties finally agreed upon as to the waiver, and the plaintiffs had no right to rely on what had been said in reference to a waiver of demand. It follows that the admission of parol evidence of the prior and contemporaneous conversations on the subject between the parties was erroneous, and a new trial must be granted, with costs to abide the event.

Mason, 0". dissented.

New trial granted.

Parker, Mason, Malcolm and MoarAnan, Justices.]