Osgood v. Davis , 18 Me. 146 ( 1841 )

The opinion of the Court was drawn up by

Sheplev J.

The rule of law which excludes parol evidence, tending to contradict or vary a written contract, may sometimes permit the crafty to take advantage of the ignorant and negligent; but the propriety of adhering to one of so much importance and usefulness, is but little lessened by such a consideration.

The writing on the back of the certificate of share numbered seventy, signed by the defendant, does not purport to sell or assign the share itself, but only the right, title and interest which the defendant had to the share. It is such a writing as one, who had held the share only for a special purpose, and who, after that purpose had been accomplished, intended to part with whatever of title he received, might properly sign. It would seem to have been drawn with the design to exclude any inference, that he warranted the title to the share, for it is language become familiar by being frequently used in conveyances, where there is no intention to warrant the title. Parol evidence is inadmissible to prove the intention of the parties to have been different from that expressed in writing, and thereby to alter the legal operation of a written instrument.

In Powell v. Edmunds, 12 East, 6, such evidence, tending to prove, that an auctioneer warranted, that a lot of timber, described in the written conditions of sale, would amount to eighty tons, was excluded. And in O’Harra v. Hall, 4 Dallas, 340, where a bond wms assigned in general terms, it was decided, that parol evidence could not be received to prove, that the assignor agreed to guarantee the payment of it.

To admit parol evidence in this case to prove, that the bargain was for a good title, would be, to change the apparent intention of the parties, as disclosed in their written contract, as well as to vary and alter the legal construction of it. This case is not like that of a sale by a bill of parcels. Such a writing was considered, in Bradford v. Manley, 13 Mass. R. 142, as designed to state the fact simply, that a sale had been completed, without intending to state the terms of the contract, and the parol evidence was not regarded as contradicting or varying the act of the parties existing in writing. To permit the parol evidence offered in this case, would be like permitting it to vary the quantity or description of goods contained in a bill of parcels.

The contract relating to share numbered eighty, states, that a part of it had been sold; and it then proceeds to state, specifically, the obligations, which the defendant assumed in relation to it. A sale, in the proper sense, could not have been intended for no actual transfer of a part could take place. The share could not be divided, nor could the plaintiff control or sell the portion. The design must have been, to give the plaintiff the beneficial interest in a part, and the terms upon which the defendant became liable to account for that beneficial interest, are stated in the contract. In attempting to make the defendant account to him for that interest upon different terms, the plaintiff must meet difficulties similar to those, which have been stated, respecting the sale of the other share.

In stating the offer to prove, by parol evidence, all the allegations set forth in the writ and declaration, it must have been understood, that the money count was for the same cause of action as the other counts, and there would exist the same objections to a reception of the testimony under that, as under the other counts.

The testimony was not offered to prove, that the defendant ' knowingly made false and fraudulent representations in relation to the title, to induce the plaintiff to enter into these contracts.

Exceptions overruled»