Gilbert Bradley vs. Solomon Bentley, 8 Vt. 243

The opinion of the court was delivered by Coleamer, J.-^There is hardly to be found in the science of. law, a principle more uniform and inflexible in its application than the rule in the law of evidence that a written contract is the highest and most conclusive evidence of the minds of the parties on that subject, at that time;land therefore it cannot be contradicted, varied, controled or added to by parol evidence.

Such evidence is never received but in case of fraud, (which is to show that in fact it never was a contract) or in case of latent ambiguity, (he instrument is complete in itself, and would have an effective ope-rration, the parol testimony is never received to give to it any other operation/) This principle has been adhered to by the courts of common law with a long and unusual uniformity, and decisions and elementary writers might be cited on this point to an extent in number and time greater than on almost any other.

That courts sometimes, pressed with an extreme case of hardship arising on the operation of a principle wholesome and salutary in its general effect, have nevei\made an anomalous and contradictory decision, is not to be expected ; but they are uncommonly rare, on this point. It is true that the courts have admitted evidence of a subsequent parol contract embracing the prior written one, and thus superseding it. This must be on new consideration independent, collateral, and furnishing redress to the party,or it must be executed and its performance actually received, when it amounts to accord with satisfaction.

The decisions on these subsequent, independent collateral contracts, embracing and con troling the written ones, have been pressed into the service and made to sustain the doctrine that' the written contract is subject to being thus controlled generally; and the distinction that such is never the case except by subsequent contract, which is not at war with the general principle, has been, in some few instances, disregarded.

It is also to be noticed, that satisfaction, actually received, is always a defence; and in such case it is immaterial whether the accord, or agreement to receive, was cotemporaneous or subsequent to the written contract. In some very few cases, the distinction that satisfaction actually received is a defence, has been lost sight of, and the decision seems to look as if the accord preyious to or simultaneous with the contract shown by parol, actually controlled it, when in truth it did not, but only the subsequently receiving the satisfaction.

This rule is, however, a rule of evidence, and therefore it may be waived by the party for whose security it is made. Like estoppel, it must, be insisted on in proper season by the party, and in a proper and legal manner, or it is waived. This accounts for another class of cases, not uncommon in the books, not unfrequently pressed on courts improperly to sustain the principle for which the defendant here contends. Among these cases is Barney vs.

Bliss, (2 Aik. 60,) iu which it was holden that by traversing instead of demurring to a plea, which alleged the written contract sued on to have béfcn made by mistake, the plaintiff waived the rule of law, that this fact might not be proved by parol. Also the case Noyes vs. Evans, (6 Vt. R. 628,) where the defendant made no objection by demurrer or otherwise to the action being sustained by parol evidence, and was therefore cast in his cause.

Parbl proof has also been admitted to rebut legal presumptions, and is undoubtedly admissible to show the written contract was never in fact delivered, and was a mere escrow.

Under one of these general principles may all the cases on which the defendant relies be accounted for. / It is perfectly obvious that to sustain this defence, we must directly admit a written contract, perfect and unambiguous, to be varied, added to and controlled by parol evidence of a cotemporaneous understanding, and when no satisfaction has been actually received, producing a discharge ; and to admit this directly against objection seasonably and regularly interposed. This we consider as directly contrary to established and wholesome law, notwithstanding the suggestions contained in Farnham vs.

Ingraham, with which the court below was pressed. It must be obvious, if this testimony is admissible, and this defence can be sustained, by the same principle, any note however apparently valuable in the consideration or execution, of which no defect or fraud is eveffsuggest-ed, is subject to being utterly controlled by parol evidence on the tender of a pepper-corn. \ ■ Judgment reversed.