Fusting v. Sullivan , 41 Md. 162 ( 1874 )

Bowie, J.,

delivered the opinion of the Court.

The first exception of the appellants, is taken to the admission of certan parol evidence, offered by the appellee (the plaintiff below) to prove that in the contract between the plaintiff and witness on the one part, and the appellants’ intestate, on the other part, for the purchase of the stock of goods, etc. it was verbally agreed between the parties, during the negotiation and before the contract was concluded, that they bought with the distinct understanding, that Fusting, the appellants’ intestate, would not go into business in Catonsville, and that tlie acquisition of the good-will of the store, and agreement of Fusting, not to set up a store in Catonsville, was part of the consideration of the purchase.

This testimony was first offered upon the hypothesis, that the contract for the purchase of tlie stock of goods, lumber, good-will of store, and agreement on the part of Fusting not to set up another store in Catonsville, was not reduced to writing ; after the witness had deposed it was not, and that the agreement for the sale of the good-will and that Fusting would not set up another store in Catonsville, was not reduced to writing, and that Fusting said, it was unnecessary to reduce it to writing, the appellants’ counsel objected to all the evidence of the witness, with reference to the contract of purchase, mentioned by him, in case it should turn out there was a written contract. The Court ruled if such should prove to be the case, the evidence would he inadmissible, but further decided, that if there was such a written contract in possession of the appellants, (the defendants) they should then produce it, to prevent the introduction of testimony that might after-wards he found to be improper upon its production.

The appellants then produced and proved the execution of a written paper, dated Catonsville, Sept. Vth, 1866, purporting to be an agreement entered into by J. P. Fusting, of the first part, and John O. Sullivan and Columbus J. Shipley, of the second part, to the following effect, viz : “The said J. P. Fusting has agreed to sell, to the parties of the second part, his store, house, lumber yard, barn and barn yard, as it now is enclosed, for the sum of $10,500, subject to a ground rent of sixty dollars per year, one-third cash, the balance in two yearly payments, viz: in payments of two years apart, after deducting three thousand dollars now due on the above estate. The party of the second part will convey a lease of a lot from J. K. Smith of 56 feel front by 160 feet deep, and take all the stock in trade in the store, and in the lumber yard at cost on its market value, adding hauling for lumber and coal as agreed upon. The payment for the latter being also one third cash; the balance to be secured by endorsed notes and bill of sale.

[Signed.] J. P. Fusting-.

J. C. Sullivan.

C. J. Shipley.

The appellants, then renewed their objections to the testimony of Shipley, as to the alleged purchase of the good-will of the store, and the alleged agreement of Fusting not to set up another store in Catonsville, because said alleged purchase and agreement, were not in said written contract, and moved the Court to exclude all of said testimony from the jury, which the Court refused, whereupon the appellants excepted — which constitutes the first exception.

After the evidence was closed, the defendants in pursuance of a right of exception, reserved as to all the evidence offered by the plaintiff tending to establish his right to recover damages, on account of the alleged breach of contract on the part of Fusting, in setting up a store at Catonsville, prayed the Court, to instruct the jury, as follows : “ That there is no sufficient legal evidence in this case, to entitle the plaintiff to recover anything, on account of the opening of the store at Catonsville by the defendants’ testator,” which instruction, the Court refused.

The rejection of the appellants’ motion to exclude the parol evidence of Shipley, which was the ground of their first exception, and of their before cited prayer, (which forms a part of the second exception,) presents the same question, — the admissibility of parol evidence in cases of written contract.

The general rule is well defined, with exceptions broadly delineated, in all the text books, illustrated by almost innumerable decisions.

The test of admissibility in such cases, is, whether the evidence offered, tends to alter, vary, or contradict the written contract, or only to prove an independent collateral fact, about which the written contract was silent. In the former case, the testimony is inadmissible; in the letter, it is competent and proper.

The case Bladen vs. Wells & Wife, is a good illustration of the former, and Basshor & Co. vs. Forbes, of the latter.

In Bladen vs. Wells, the grantors by their deed, in consideration of §1300, conveyed to the grantee, certain lands therein described; afterwards, they filed their bill, alleging that at the time of the sale, the appellant (the grantee) agreed, that if the lands contained not more than 140 acres, it was to belong to the appellant, but if more, the appellant was to pay the appellees, for the excess over 130 acres, at the rate of $10 in gold, or $20 in currency per acre. Exceptions were taken to the evidence in relation to the agreement; in commenting upon which, this Court held such testimony inadmissible, because the alleged contract and the case made by the bill, were inconsistent with the deed, in ivhich all previous contracts regarding the land ivere merged, 30 Md., 582.

This case distinctly recognizes the settled law, that parol evidence may be offered to prove any collateral, independent facts, about which the agreement is silent, referring to Creamer vs. Stephenson, 15 Md., 211 ; McCreary vs. McCreary, 5 G. & J., 151; Dorsey vs. Eagle, 7 G. & J., 331, but concludes, that in the principal case then before the Court, the deed was neither silent nor inconclusive as to the matter about which the parol contract was made ; it related to and covered conclusively the whole subject of the contract, both as to price and quantity, and was a full, complete, and executed contract between the parties, in reference to the land which was sold. On the other hand, this Court in the late case of Basshor & Co. vs. Forbes, declared the testimony offered by the defendant to prove that his individual liability as a stockholder, was waived by a verbal understanding with the plaintiffs, that they were to look to, and rely upon the securities furnished by the company alone and exclusively, was admissible to prove an independent and collateral fact, not provided for by the terms of the contract. In support of which position, they refer among others, to the cases cited in Bladen vs. Wells, also Bindley vs. Lacy, 17 Com. B., (N. S.,) 578 ; 2 Taylor’s Evidence, secs. 1038, 1049; Vide, 36 Md., 164, 167.

The case of Allen vs. Sowerby, Admr., 37 Md., 420, also sanctions the admission of parol evidence, to establish ‘ ‘ an additional suppletory agreement.” by which something is supplied, that is not in the written contract; for which, it relies on Coates & Glenn vs. Sangston, 5 Md., 130 ; Atwell & Appeleton vs. Miller, 11 Md., 361. To these maybe added the more recent English cases cited by the appellees. Bindley-vs. Lacy, 17 C. B. (N. S.,) 586; 1 L. Repts. C. P., 336; Wallis vs. Littell, 11 C. B. (N. S.,) 369 ; 2 Taylor’s Evi. secs. 1039, 1049.

The evidence offered by the appellants in their first bill of exceptions, is closely analagous to that which was ’decided to be properly admissible, in the case of Basshor vs. Forbes.

Although the good-will of the store and the agreement not to set up another, were according to the statement of Shipley., material elements of the consideration to be given for the purchase of the property, yet, they were not necessarily involved in the purchase, nor referred to in the contract, and were in fact incidental and collateral.

We think therefore, that the ruling of the Court below on the first exception, and in rejecting the appellants’ prayer set forth in the second, was correct both upon principle and precedent.

The first branch of the second bill of exceptions, is the prayer of the appellee, (the plaintiff below) granted by the Court, instructing the jury, “that the crediting of the two notes of $335 and of $500 in the account offered in evidence by the defendants under date of July 1, 1868, before the maturity of said notes, or either of them, is no evidence of the payment of said notes, but that the possession of said notes by the plaintiff is prima facie evidence that they have never been paid.”

The objection of the appellants to this prayer is, that the Court below, by instructing the jury that the act of the plaintiff in crediting the notes as payments in the account of January 1st, 1868, was no evidence of the payment of said notes, it deprived the defendants of the benefit of the admission of those credits in that account, when taken in connection with other facts in evidence in the cause. In other words, the plaintiff, by segregating that particular portion of the evidence from all the other evidence in the cause, as to the payment of the notes, and procuring the instruction of the Court as to the legal effect of that item, “per se,” had misled the jury.

It is to be observed, that this instruction, is not one of that class, which asserts the right of recovery, upon the hypothesis of the truth of the facts stated in the prayer, without regard to other facts in proof by the defendants ; that is to say, it did not go to the right of action, but was subordinate to it, being an expression of the opinion of the Court, as to the legal effect, as evidence, of ‘certain acts of the plaintiff, proved by the defendants as an item of evidence, under 'the issues involving the payment of the notes; as in the cases of Whiteford vs. Burkmyer & Adams, 1 Gill, 128; Atwell vs. Miller & Mayhew, 6 Md., 19.

(Decided 2nd December, 1874.)

If the appellants supposed the instruction prejudiced them by isolating the facts referred to in it, they had the right to ask the opinion of the Court upon the whole testimony. Finding *no error in the rulings of the Court below upon the several exceptions, the same will he affirmed.

Judgment affirmed.