James S. Lane, plaintiff in error, v. Jacob Sharpe, defendant in error, 3 Scam. 566

Caton, Justice, delivered the opinion of the Court: Two questions arise in this case : first, whether the Court erred in allowing the parol evidence to go to the jury; and secondly, whether a new trial should have been granted.

The effect of the parol evidence was to show, that at the time of the final consummation of the contract, between the parties, when the notes were executed on one side, and the bond or contract on the other, in addition to the sealed instrument, it was agreed between the defendant and .the agent of the plaintiff, that if the land in the agreement mentioned, should be redeemed by minor heirs, at any time within two years from the date of the notes, the contract should be rescinded, and the money which had been paid by the defendant refunded.

The rule is, where a contract is reduced to writing, that the writing affords the only evidence of the terms and conditions of the contract. All antecedent and cotemporaneous verbal agreements are merged in the written contract. The law will not allow that an'agreement may rest partly in writing, and parly in parol; so that it is equally inadmissible to add to, take from, or specifically change the terms of a written agreement, by parol.

In this case, where the agreement of the parties was reduced to writing, we must assume that the written instrument contains the evidence of the real intention of the parties, in relation to the subject matter of the contract; and the enquiry is, whether the parol proof admitted, superadds anything to the agreement, whereby it is in fact changed, or its terms are in reality varied? We think it is. It makes that which is by the writing, clear, certain, positive, and conclusive, uncertain and contingent. The agreement in writing provides for an absolute sale of the land, upon the payment of the" purchase money.

The parol proof shows that the agreement was not absolute, but might be destroyed by a contingency to happen at any time within two years. The written evidence shows that the plaintiff only agreed to convey by quitclaim deed. The parol shows that he, in fact, warranted against the title being defeated, by the redemption by minor heirs, within two years. In the writing adduced, the parties say one thing; by the parol proof they are made to say quite a different thing.

Indeed, if this evidence were to be admitted, we should find it difficult to determine what might not with equal propriety be superadded, by parol, to the written evidence of the intention of the parties. Unless we are to presume that the parties have expressed their whole intention in the writing which they have signed, we should not only destroy the sanctity, but the security of written agreements. It is true, that matter collateral to the writing, may be proved by parol, but it must not change the terms of the contract, or increase or diminish the liabilities of the parties.

That this is an instance of this character, no better test could be devised than the case itself presents. Here it must be admitted, on all hands, that the agreement, whatever it was, constituted the consideration of these notes. If we take the written evidence alone, as the proof of what that agreement was, then no matter what may have subsequently turned up to impair the title, the consideration of the notes has not failed, for the doctrine of caveat emptor would apply to its utmost extent.

But if we take the parol testimony, in conjuction with the written instrument, as evidence of what that agreement was, then, so different a contract is shown, which constituted the consideration of these notes, that the redemption, by minor heirs, within the two years, would show a failure of consideration. In fact, the difference is such, that under one agreement, the vendor takes the risk of the redemption; under the other, that risk is taken by the purchaser.

This certainty cannot be done without utterly destroying the rule which provides that the writing must contain the evidence of the agreement of the parties. If we allow parties to go thus far out of their own deed, to show their intentions, we shall be unable to fix any limit to the range of enquiry. I think the Court erred in allowing the evidence to go the jury. But even admitting this parol proof to have been properly admitted, still the issues to which it is applicable, are not sustained. These issues are founded on the replications to the third and sixth pleas.

The replication to the third plea, denies that the notes were given in consideration of the verbal agreement of the plaintiff to convey the land to the defendant. The witnesses, Lacy and Griggs, who speak on this point, say that they considered the parol contract, together with the bond and notes, as the contract between the parties respecting said land; and that the defendant would not have signed said notes, if said parol contract had not been made.

This evidence, instead of showing that the parol contract was the sole inducement to the making of these notes, proves that the parol agreement, together with the written instrument, was the inducement to the notes. The issue tendered on the replication to the sixth plea, is that it was not agreed between said parties that if any claim adverse to the claim of the plaintiff, should be produced before the notes fell due, then the agreement should be cancelled, &c.

The parol agreement proved was, that if the said land should be redeemed by minor heirs, within two years from the date of the bond, the contract should be rescinded, &c. Here too, the proof does not sustain the issue. The averment is, that the agreement should be void, if any claim should be presented. The proof is that it could only be avoided by the redemption by minor heirs. A multitude of claims might be fatal to the agrément set out in the plea, while according to the evidence, but a particular one could avoid it.

The replication to the second plea admits the contract for which the notes were given, as set out in the plea, and only denies that the land was redeemed by minor heirs. On the motion for a new trial, it becomes necessary to enquire whether there was sufficient proof to authorize the jury to find this issue for the defendants. The only evidence relied upon in the argument, or which approaches this question at all, is found in the testimony of Wagg. He says he heard the parties have a conversation in Quincy, when they were trying to settle, but what they said he could not state.

The defendant produced some papers, but what they were he did not know. The defendant said something about adverse claim to, or redemption of the land, but what it was he could not state ; but the plaintiff replied, “Such accidents will happen.” The parties did not settle. This is the evidence relied on to show that the land had been redeemed by minor heirs. If any such redemption was ever made, it should have been proved by the records in the Auditor’s Office, that being the best evidence of which the nature of the case would admit.

But so far from that being the proof here, hardly the shadow of a presumption is raised that any such redemption had ever been made. A new trial should have been granted. The first and third errors being well taken, the judgment of the Court below is reversed with costs, and the cause remanded. Judgment reversed.