Goodwin v. Horne , 60 N.H. 485 ( 1881 )

The rule that parol evidence is inadmissible to vary the terms of a written contract, does not exclude evidence of a want of consideration, illegality, or fraud, when a defence is made on any one of these grounds. Although the agreement of the payee to buy five hundred beds at a profit to the defendant, and in payment of the notes, was no part of the consideration, it was an inducement to the sale of the invention for which the notes were given. ordinarily false promises are not fraudulent; nor evidence of fraud, and only false representations of past or existing facts are actionable, or can be made the ground of defence. Long v. Woodman,58 Me. 49; Murray v. Beckwith, 48 Ill. 391; Loupe v. Wood, 51 Cal. 586; Jorden v. Money, 5 H. L. Cas. 185; Cool. Torts 486. But when a promise is made with no intention of performance, and for the very purpose of accomplishing a fraud, it is a most apt and effectual means to that end, and the victim has a remedy by action or defence. Such are cases of concealed insolvency, and purchases of goods with no intention to pay for them. Bradley v. Obear, 10 N.H. 477. If the payee had no intention to buy the spring-beds, and used the promise for the purpose of inducing the defendant to buy the invention and give the notes, and the defendant, relying upon the promise, gave them, it was evidence of fraud. The evidence objected to contained only a part of the representations made at the time, and claimed to be fraudulent. With other representations and acts of the payee, the evidence was relevant to the question of his intention to defraud the defendant, and induce him to give notes for a worthless patent. All the negotiations between the parties at the time of the sale, and when the notes were given, were material upon the question of fraud in the payee.

The offer of the plaintiff to show that since the suit was brought the defendant conveyed his real estate to prevent the satisfaction of any judgment which the plaintiff might recover, was an offer to show the conveyance of land by parol evidence, and objection was made upon this ground. Competent evidence of such a conveyance was material upon the question of the honesty and good faith of the defence. Gutterson v. Morse,58 N.H. 165. But the evidence offered was secondary in its character, and this was a sufficient ground for its exclusion.

Judgment on the verdict.

BLODGETT, J., did not sit: the others concurred.