William L. Clark, Administrator, vs. James Deshon, 12 Cush. 589

Shaw, C. J. This action is defended on the ground that parol evidence is not admissible, the bill of sale being absolute. But the court think the evidence is admissible, on two grounds. It is sometimes argued, and was here, that such evidence is competent, because the bill of sale does not give the whole contract. But this is a dangerous ground. If parol evidence is to be admitted to show that a written instrument does not contain the whole contract, and then the party is allowed to show by parol evidence what that contract was, all the evils which the statute of frauds is intended to guard against would follow.

But there are two grounds on which it is admissible here. 1. In the first place it has been often held that a receipt may be controverted by parol; and if a deed contain a receipt of the purchase money, it may still be shown that it has not been paid. It is introduced into the instrument to give effect to it, by showing a consideration on its face, and may be contradicted, so far as the amount and the fact of payment is concerned. This brings the present case within the rule.

A further authority to show that the acknowledgment of the receipt of the whole consideration in a deed, conveying real or personal property, is not conclusive is, that a vendor may sue for the whole or any part of the unpaid price, and maintain his case by parol evidence. Wilkinson v. Scott, 17 Mass, 249. 2. Another distinct ground for the admission of this evi dence is, that where a conveyance of property has been mad by deed expressing on the face of it a consideration, it ma) be shown by parol evidence, that an additional consideration, or that another and distinct consideration in fact existed, Wallis v.

Wallis, 4 Mass. 135; Brewer v. Hardy, 22 Pick 376. On both these grounds, the case is within the rule. There is an absolute bill of sale, but the present action does not call in question the conveyance. The plaintiff claims that the vessel was to be paid for in a particular way, and this action is to recover the amount to be so paid. It was argued that there was an attempt to graft a defeasance upon an absolute conveyance, but this evidence has no tendency to prove a defeasance. It does not import to be a stipulation that this instrument should be void, on the performance of any condition.

This action is not for a reconveyance. The agreement alleged was no defeasance, but a separate, independent stipulation. We do not perceive that such admission 'of parol evidence is obnoxious to any objection. It is admissible, to show a collateral agreement as to the mode of payment, and when so admitted, does not interfere with the conveyance itself. Judgment for the plaintiff on the verdict.