DIXON vs. BARCLAY, 22 Ala. 370

PHELAN, J. The first three counts in the declaration were counts in case, and not in assumpsit, as has been argued by the plaintiff in error.

Although in these counts the plaintiff sets forth a contract between himself and the defendant, this was only as matter of inducement, opening the way to the statement of the gravamen of his action, which is the fraud and deceit alleged to have been practiced upon him by the defendant, at the time the contract set out was made, and which consists in the secret and fraudulent purpose he then entertained, as it is alleged, of violating that stipulation of the contract which related to the removal of the slave from the State. Barney v. Dewey, 13 John. 224; 8 Grill & John. 421.

That case and trover may be joined is clear law, and there was, therefore, no misjoinder. The counts themselves separately show a substantial cause of action, in the nature of an action on the case for deceit and fraud, and are not demurra-ble. The demurrers to each count, and also to tbe entire declaration, were therefore properly overruled.

Tbe objection of Dixon to parol proof by tbe plaintiff of such a contract as that set forth in bis declaration, after tbe production of tbe bill of sale from tbe plaintiff to Cunningham, given on the purchase of tbe slave Butler, was properly overruled, and such testimony correctly admitted. Plaintiff was authorized by tbe nature of bis case, to show, by parol proof, a contract between tbe parties different from that shown by the bill of sale.

He was not proceeding upon tbe contract which is set out in his declaration, and which differs from that shown by the bill of sale, but he was endeavoring to show, that the defendant had perpetrated a fraud upon him.

The fraud and deceit of the defendant in making with the plaintiff a contract, which, at the time he made it, he did not intend to keep, is the gist of the plaintiff’s action; and the very fact which the exhibition of the bill of sale establishes, namely, a material difference between the contract as contained in it, and the contract as alleged in the declaration, and proved by the witness, is a circumstance which the plaintiff might well urge, in connection with others, to prove the fraud and deceit of which he complains.

The parol proof was, then, properly admitted, although it contradicted the .bill of sale ever so directly. The well settled doctrine, that you shall not introduce parol evidence to vary, contradict or explain a written instrument, does not apply ro the case. Cozzins v. Whitaker, 3 S. & Port. 322. The subject under review naturally leads next to the consideration of the charges of the court.

Prom the nature of the charges given to which no exception was taken, as well as from some of the charges which were asked by defendant and refused, it is apparent that the nature of the plaintiff’s action, and the true question at issue between the parties, was to some extent overlooked in the trial below. The charges given, and part of those which were requested by the defendant, are evidently predicated upon the idea that the action is one founded on a contract entered into between the parties respecting the slave Butler and his removal from the State, and seeking a recovery for the breach of that contract.

But this is not the case. On the contrary, plaintiff’s action is predicated, not upon a contract at all, but upon an alleged act of fraud and deceit wbicb makes tbe contract, or ratber the apparent contract with which it stands connected, totally void; a nullity. Upon what principle is Barclay allowed to offer parol proof of a contract which directly conflicts with a written instrument made at the same time, between the same parties, and relating to the same subject matter?

Simply for the reason, that, from the very frame and nature of his action, it is his-object to show, and he has taken upon him the onus to show, that such written instrument is tainted by fraud in its inception, and, therefore, of no validity as against the party intended to be defrauded. If the plaintiff had proceeded upon the contract as valid and subsisting, he would have been estopped by his bill of sale from setting up any verbal contract made at the same time which would conflict with it. The general doctrine to this extent is too well settled to need argument.

It is, therefore, only by repudiating the contract, as one invalid for fraud, that he has been allowed to do this. It is manifest, then, that the plaintiff rests his right to recover damages in this action upon his ability to show a case of fraud and deceit, which shall render the contract into which he entered with the defendant nugatory, and which thus leaves him free to proceed for the tort- — -the injury, which he suffered in being seduced into a contract which the defendant, at the very time he made it, did not intend to keep on his part.

Assuming the correctness of these views, it follows that, if Cunningham, at the time he made the purchase, intended bona fide to carry the slave out of the State, the very ground of the plaintiff’s action, as contained in the three first counts of the declaration, namely, that the defendant at that time, mala fide, deceitfully and fraudulently intended not to do so. is taken from him.

Indeed, upon sifting the question to the bottom, it will be found, that the right of the plaintiff to recover in this action, not only on the first three counts, but on the entire declaration, the counts in trover included, must always depend upon his ability to show to the satisfaction of a j ury these two things: first, that Cunningham, at the time he purchased the slave Butler of Barclay, agreed with Barclay to take him out of the State, and that he did not intend to keep this agreement when he made it; and, in the second place, that Dixon knew of this fraudulent intention on the part of Cunningham, and was a party to the agreement he made with Barclay beforehand; or else, that he subsequently, and with a knowledge of all the facts, availed himself, as a member of the firm of Cunningham & Dixon, of the interest in the slave thus acquired by Cunningham.

One of the charges requested by the defendant was in these words: “That if the jury believe from the evidence, that Cunningham intended,' at the time he made the contract with the plaintiff, to carry the slave out of the State, but was prevented from doing so for a time, and afterwards omitted to do so, then the plaintiff cannot recover under the three first counts of his declaration;1’ which the court refused. The leading proposition of this charge was in accordance with the views we have expressed, but taken as a whole, the charge is defective in distinctness and clearness.

What is meant precisely, is open to construction and difference of opinion, and for this reason the court had a right to refuse it. The jury, may or may not have gathered from such a charge, that the omission or refusal of Cunningham to perform his agreement, to carry the slave out of the State, was prima fade evidence that he did not intend to keep the agreement when he made it; and it is proper that the charge should distinctly contain that feature to cover the merits of the question.

The proof by plaintiff of the manner in which the note given by Cunningham to Barclay, and which was passed by the witness to Dixon in payment of a debt due from him to the latter, was signed, without the production of the note itself, was entirely competent. See, on this subject, the case of Graham v. Lockhart, 8 Ala. 9.

The proof offered by defendant about Cunningham’s consultation with a third person before he purchased the slave Butler, and what he said to third persons before and after was his object in purchasing, and proof of his offering a reward in his own name, and paying it, to show that the purchase was on Cunningham’s individual account, and not on account of the firm of Cunningham & Dixon, was all properly rejected. So far as the plaintiff was concerned, these acts and declarations of Cunningham were either res inter alios acta, or the mere declarations of a party in his own behalf.

The rejection of the proof as to the value of Butler, which the defendant offered to make by the witness Watson, cannot, however, be supported. That the testimony was weak and unsatisfactory is true; but it cannot be held to be wholly irrelevant. Watson was shown to be a dealer in slaves, and therefore a better judge of the value of that property than ordinary men; and it will not do to hold that what such a witness testifies as to the value of a certain slave in the fall, of 1845, because he never saw him until the spring of 1848, is to be wholly excluded.

For this error, the judgment below is reversed, and the cause remanded.