Gould v. Lee

The opinion of the court was delivered, May 13th 1867, by

Woodward, C. J.

— When this case was here in 1864 (11 Wright 402) we decided that, under the original contract between Charles M. Leupp & Co., of one part, and Jay Gould, of the other part, dated February 1st 1859, David W. Lee, as surviving partner of the firm of Leupp & Co., was bailor of the hides in question, and, as such, entitled to maintain replevin for them.

This disposed of the substantial questions in the case, except one, which was, whether Gould had been released from liability for the 1200 hides replevied by the agreements entered into between him and Lee on the 21st August 1860.

Let us see how this question stands upon the evidence. On the 7th of April 1860 the replevin issued out of the Common Pleas of Monroe county was laid upon 1200 hides in Case’s barn, to which Gould had carried them from Goldsborough, under circumstances that indicated a disposition to convert them to his own benefit. On the 14th of April 1860, Lee filed a bill in equity in the Common Pleas of Luzerne county for an injunction to protect other personal property at Goldsborough in which he claimed an interest as owner, and as bailee of one John B. Alley, of Boston, who had furnished hides to be tanned at that tannery.

On the 21st of August following, Lee and Gould made a written agreement, which is entitled of the.equity suit, and which manifestly had for its object the settlement of that suit.

The leather to which this agreement related is described as the leather which, in pursuance of a previous order of the court, had been consigned to Bullard & Co., New York, in the name of Walter G. Sterling, of Wilkesbarre, and the leather still at Goldsborough, which was to go forward to Bullard & Co. in the same manner, excepting the leather belonging to John B. Alley or his firm. Yery manifestly this description of the subject-matter, both of the equity suit and of the agreement to settle it, did not embrace nor refer to the 1200 hides which had been replevied in Monroe county. But the agreement contained also mutual releases of the parties from all claims or demands of any name or nature, excepting as above stated. Had the premises included the replevied hides, these general words might be construed to embrace the replevin suit; that suit and its hides do not seem to have been before the minds of the contracting parties, and if the defence of accord had stood upon this paper alone, it may well be doubted whether it could be sustained. But all doubt on this head was removed by the parol testimony of Snyder, who swore that the leather for which the replevin suit was brought was expressly excepted from the agreement, and that another agreement of the same date, which was afterwards destroyed by him with the consent of the parties, related to this leather and some other matters. If this evidence were believed, the general terms of release employed in the agreement which settled the equity suit could with no propriety be held to embrace the present suit or its subject-matter. But the admission of the parol evidence is very earnestly complained of. Was there any error in that ?

Parol evidence is not admissible to alter or contradict what is written, upon the very obvious principle that the writing is the best evidence of the intentions of the parties; but parol evidence has many times been received to explain and define the subject-matter of written agreements. Herein is no contradiction.

And when a writing has been lost or destroyed its contents are in general only provable by parol. Snyder was the scrivener, the subscribing witness, the depositary and the destroyer of the second agreement of August 21st, and was therefore the best possible witness to its contents. The proof of the contents of the paper that was burned limited the operation of the paper that survived, and showed that none of its terms could properly be permitted to release the replevin suit. This evidence therefore extricated the case from the only doubt that attended it when it was here before.

Several assignments of error, founded on bills of -exception to evidence and on parts of the charge, involve a misconstruction of that clause of the original agreement of February 1st 1859, which relates to a guaranty of the sales of the leather. It is not a covenant of guaranty, but a fixing of the' rate of commission for selling and guaranteeing in the ordinary course of the commission business. In commercial transactions the house that receives and sells any commodity for another party guarantees the price, less the agreed commissions, but gives no security to make this guaranty good. The responsibility of the house and of every member of it is pledged to the consignor, and their credit is accepted as satisfactory when the consignment is made. So far as Gould had any property in the leather tanned at Goldsboro’, he made Leupp & Co. his factors for the sale of it by his agreement; and though he might perhaps have refused to ship to them or have stopped the goods in transitu in case of their evident insolvency, yet there was nothing in the evidence offered to justify him' in secreting a large quantity of leather in Case’s barn.

That was the point which he had to defend and the rejected evidence would not have served him, and therefore he was not injured by its rejection. '

In looking through the 18 errors assigned, we see nothing else that requires special comment, and therefore the judgment is affirmed.