Rogers vs. Atkinson et al.

bill, and yet strangely determines, that unless an amendment can be made, so far as respects one of the charges, the bill must be dismissed; and when the amendment is made, still re-affirms the decision. The first charge in the bill affirms that complainant was not liable at law, and could not have been so held. (Prince's Digest, 734, 740; (D) Tayler vs. Rushing, 2 Stewart's Rep. 160. (2)) The second is, that he was prevented from relying upon this defence by the conduct of defendants. (1 Johns. Ch. Rep. 49, 91, 324; 2 ib. 228. Thirdly, the agreement set out on the minutes of the court is not, necessarily, all the agreement that was made; and the bill charged, properly, before it was ordered to be amended, that the agreement with complainant was separate, or if not, that it was part of the one agreement, and was left out by fraud or mistake. A bill may be framed in the alternative. (7 Porter, 144.) The court, therefore, erred in that part of the decision which affirms the contrary. But the bill, as amended, charges the agreement to be one entire agreement, and that a part was left out by mistake; which the court has power to reform.-1 Mad. 48; 1 Ves. 168; 2 Atk. 203; ib. 33; 2 Johns. Ch. Rep. 585. The agreement was on sufficient consideration.-Chit. on Con. 43, 44, 46, 47, 48, 63. The agreement with plaintiff most distinctly placed him in the attitude of security; and the dismissal of the levy is in equity a release.-Pothier des ob. 406, 7 Johns. Rp. 332; 2 Johns. Ch. Rp. 554; 5 Bing. 64; 8 ib. 161; 8 Taunt. 208; 9 Wheat. 680; 8 Wend. 512; 10 Johns. Rep. 587; 10 Wend. 162; ib. 126; 9 Wheat. 702; 15 Wend. 329; 14 ib. 165; 6 Johns. Ch. Rep. 264; 6 Wheat. 466; 11 Wheat. 184; 2 Cowen 129. Compromising.2 Kinney 244. After all these charges are noticed, and taken to be true, the single question which presents itself is, can this bill be dismissed, or the injunction dissolved on demurrer.-Mitford 108, 111, 4, 5, 134, 159, 161, 164; Eden on injunctions 116. AKIN for defendants in error, cited Stephens et al. vs. Cooper et al., 1 Johns. Ch. Rep. 429; Parkhurst et. al., vs. Van Courtland; 1 Johns. Ch. Rep. 273; 2 Starkie on Ev. 548; and ib. note P.; ib. 550; Gibson vs. Watts; 1 McCord's Ch. Rep. 490 and 505; 6 Cowen 690; 1 Johns. Rep. 139; 7 Johns Rep. 341; 3 Johns. Rep. 506; 1 Johns. Rep. 414; Woollam vs. Hearn, 7 Ves. 217; 1 Cowen 250; 1 Johns. Ch. Rep. 50; 2 Maddox 292-3; Story's Eq. Plea. 295, 301 and 311; Story's Com. on Eq. Mistake.

LUMPKIN, Judge, having stated the facts of the case, proceeded to deliver the opinion of the court as follows:

The view we take of this case, renders it unnecessary to examine the various questions which have been discussed by counsel. The decision complained of in the first assignment of error, requiring the original bill to be amended, was made before the act of the legislature was passed creating this court. We shall therefore, for the present at least, decline reviewing it. Whether we have the power to do so, is a point that has not been argued at bar, and as it may, and probably will be presented for adjudication hereafter, in a more direct and solemn form, we will not anticipate it. If this court could not assume jurisdiction over an interlocutory judgment, pronounced in the progress of a case, prior to its organization, which case did not terminate till after its establishment, it is quite obvious that the re-affirmance of that judgment on the final decision of the court below, when the point was not before it, could not

(1.) It shall be the duty of any person who may obtain such establishment, or order, or leave, to keep a good and sufficient ferry flat or bridge, and to give due attendance thereat; and if any damage shall happen to any person or persons by reason of the insufficiency of such flat or bridge, the non-attendance or neglect of the ferryman or keeper of such bridge, the person so aggrieved or damaged shall and may have and maintain an action against the owner of such ferry or bridge-Prin. Dig. 734.

Inferior courts to require the owners of ferries to give bond and sufficient security, in such sum as they may think proper, conditioned for their keeping in repair a good and sufficient flat, and attendance.-Prin. Dig. 740.

(2.) The Alabama Digest, referring to the case cited of Taylor vs. Rushing, 2 Stewart's Rep. 160, was read; when the court notified counsel, that they would not absolutely exclude digests of reported cases, but that such digests would not be considered as authority.

Rogers vs. Atkinson et al.

give to this court jurisdiction. We express no opinion, then, upon the sufficiency of the original bill, or correctness of the opinion delivered

thereon.

The burden of the argument of counsel for the defendant in error has been, to establish the rule, that parol evidence cannot be received, to add to, contradict, or materially vary, a written agreement; and that the instrument itself must be considered as containing the true understanding between the parties, and as furnishing better evidence thereof than any which can be supplied by parol. We subscribe to the doctrine in all its amplitude, and a series of adjudications, both in England and in this country, in the State and national courts, have firmly and uniformly upheld the principle and placed it beyond the reach of successful attack It would appear to be doing more than duty requires, an act of supererogation, to refer to the cases. When we reflect, however, that hitherto every thing in the jurisprudence of the State has been fluctuating, and that we are just now upon the threshold of our newly-compacted judicial system, under which what is written will remain written, we feel the necessity and importance of settling every principle upon the most' solid foundaIn this way alone can we hope to fulfill the design of the Assembly in securing stability, as well as uniformity in the administration of the law. In Hoar and others vs. Graham and others, (3 Campbell's Rep. 57,) the endorsee sued the endorser of a promissory note. The defence set up was, that the defendant refused to endorse the note, unless the plaintiff would agree that it should be renewed on becoming due. They did so agree. Instead of calling for a renewal they demanded payment at the maturity of the note. The evidence was held inadmissable. Lord Ellenborough says:-"The parol condition is quite inconsistent with the written instrument. The condition for renewal entirely contradicts the legal import of the endorsement. After the bill is drawn there may be a binding promise, for a valuable consideration, to run it when due. If the promise is contemporaneous the law will not enforce it." In Powell vs.

tion.

Edmonds, (12 East 16,) an attempt was made to show by the auctioneer a parol warranty of the quantity of timber contained in the lot purchased, none such appearing in the written conditions of sale:-Thompson Baron, before whom the trial was had, ruled out the testimony, and the question came before Lord Ellenborough on a motion to set aside the verdict. "There is no doubt," says the chief justice, "that the parol evidence was properly rejected in this action; the purchaser ought to have had it. reduced into the writing at the time, if the representation then made as to the quantity swayed him to bid for the lot. If the parol evidence were admissible in this case, I know of no instance, where a party may not by parol proof superadd any term to the written agreement, which would be setting aside all written contracts, and rendering them of no effect." Parol evidence was offered in Woollam vs. Hearn, 7 Vesey, to show that £50 was the yearly rent intended to be paid, instead of £73 10s., the price inserted in the memorandum of the lease, and repelled by the Master of the Rolls. "To admit," he observed, "to prove that the written instrument does not contain the real agreement, would be the same as receiving it for any purpose. It was to shut out that inquiry that the rule of law was adopted. Though the written instrument does not contain the terms, it must in contemplation of law be looked to, to

Rogers vs. Atkinson et al.

contain the agreement,-as furnishing better evidence than parol can supply."

The inflexibility of this doctrine is vigorously supported by all the judges in the case of Woodbridge vs. Spooner, (1 Chitty's Rep. 667, and condensed in 3 Barn. and Ald. 233,) where parol proof was adduced to show that a note payable on demand, was not to be collected until after the death of the maker. Abbott, C. J. said "The rule was too well established, that parol evidence cannot be admitted to contradict, add to, or vary the terms of a written instrument."

Bailey, J. It would be extremely dangerous and inconsistent with those general rules of evidence, by which we proceed in courts of justice, to allow a party, after giving an instrument, in which he says, I promise to pay on demand, to say by parol evidence, 'You know I did not mean to pay on demand, but I merely promise to pay when I die.'"

Holroyd, J. "Inasmuch as the evidence went to the extent of contradicting the note itself, it appears to me, that the case comes within the general rule of law, that parol cannot be admitted in opposition to written evidence."

Best, J. "Here is a written instrument between the parties by which they are bound, and it would be contrary to the first principles of evidence to receive parol evidence, for the purpose of showing that the written contract is different from that which it is supposed the parties intended. I know of but one exception to the general rule, and that is founded in public policy, namely, where the contract is illegal; but if it cannot be shown that there was any illegality in the contract, the law must take effect."

The same point was decided in a very similar case, Mosely, assignee of Robinson, a bankrupt vs. Hanford, (10 Barn. and Cress. 723)—vide Peacock vs. Monk, 1 Vesey, 128; Clarkson. vs Hannah, 2 P. Wms. 204; 8 Term Rep. 147, 379,384; 2 Wm. Black. 1249; 2 Bos. & Pul. 565; 2 Vesey, 195; 6 Vesey, 333; Dickens, 295; 1 Brown's Ch. Ca. 92, 338; 1 Bla. Rep. 1202, and Fell on Guaranties, 57, 59.) The general rule of the Scotch law is to the same effect, namely, that "writing cannot be cut down or taken away by the testimony of witnesses."-Tait on Evidence, p. 326-32; quoted by Greenleaf on Evidence, p. 315, n. 2.

We will next advert to a few leading American cases; they will be found equally explicit upon the point under consideration. The case of Munford et al. vs. Macpherson et al., was an action upon a parol warranty upon the sale of a ship," that she was completely copper-fastened." The printed bill of sale was in the usual form, and contained no such warranty. In the progress of the argument, the court stopped counsel with this pregnant inquiry, "Can a case be found where an action has been brought upon a parol contract, made una flatu with a written contract?" And Thompson, Justice, in delivering the opinion of the court, remarks, "It is not pretended that there was any fraud in this transaction. Had the plaintiff's claim rested on any deceit in the sale, the evidence would have been admitted; but the contract between the parties was reduced to writing, and is contained in the bill of sale, and recourse must be had to that instrument to ascertain its extent. It cannot be a safe and salutary rule to allow a contract to rest partly in writing and partly in parol. Whenever it is reduced to writing, that is to be considered as the evidence of the

Rogers vs. Atkinson et al.

agreement, and anything resting in parol, becomes thereby extinguished." (1 Johns. Rep. 414.) In Howes vs. Barker, (3 Johns. Rep. 309,) C. J. Kent says. "I have struggled hard, and with the strongest inclination to see if the form of the action would not help the plaintiff in this case; but I cannot surmount the impediment of the deed. Sitting in a court of law, I think I am bound to look to that deed as the highest proof of the final agreement between the parties." In Maighley vs. Hamer, (7 Johns. Rep. 341,) the court declared, "It is a settled rule that where the consideration is expressly stated in a deed, and it is not said, also, for divers other considerations, you cannot enter into any proof of any other, for that would be contrary to the deed. The remedy for the party, if the deed be contrary to the truth of the case, is by seeking relief in equity against the deed on the ground of fraud or mistake." (See also Fitzhugh vs. Kunyon, 8 Johns. Rep. 375; 2 Cain, 161; Kirby's Ct. Rep. 22.) In Parkhurst vs Van Courtlandt, (1 Johns. Ch. Rep. 281,) the principle is thus strongly stated by the Chancellor; "I apprehend the rule to be too reasonable, and too well established to be now disturbed, that where an agreement is reduced to writing, all previous negotiations are resolved into the writing, as being the best evidence of the certainty of the agreement. Everything, before resting in parol, becomes thereby extinguished, or discharged. Parol proof cannot be resorted to, either to supply what may be uncertain or defective in the writing."

We conclude then that there is no rule of law better settled, or more salutary in its application,than that which refuses to admit oral testimony to contradict, vary, or materially affect, written agreements, whether specialties or simple contracts, and whether within or without the statute of frauds; and we believe that we are altogether safe in asserting that it has been recognised and adopted by every State in the Union.-4 Ohio Rep. 347; 16 Sergt. & Rawle, 108; 6 Dana, 156; 5 Pick. 38; 1 Dev. & Bat. 250; 6 Halsted's N. J. Rep. 275; 10 Gill & John. Rep. 404; 11 Louis. Rep. 133, 416; 6 Porter's Rep. 132; 5 Yerger, 194, 195; 7 Leigh. Rep. 632; 1 McCord Ch. Rep. 490. The question has been repeatedly adjudicated by the courts of the United States.-8 Wheaton, 174; 9 Wheaton, 581; 3 Mas. C. C. Rep. 378; Peters' C. C. Rep. 85, 199; Gilpin's D. C. Rep. 329; 3 Dall. 415; Bald. C. C. Rep. 489. To use the emphatic language of a popular modern law writer-"It has been so frequently adjudged by the courts on both sides of the Atlantic, as to have the resistless force of a maxim, that parol evidence cannot be received in a court of law, to contradict, vary, or materially affect, by way of explanation, a written contract." Indeed the rule itself seems never to have been questioned, by courts at least. The nearest approach to it, I have met with is by Mr. Justice Huston, in the case of Thompson et al. vs. McClenachan et al., (17 Sergt. & Rawle.) His remarks as reported, are these: "There is scarcely any subject more perplexed than in what cases, and to what extent, parol evidence shall be admitted: not only have different men viewed the subject differently, but the same man, at different times, has held opinions not easily reconciled; and I doubt whether any lawyer, of many years standing, and much reflection can say his mind has never wavered upon the subject. In theory adhere to the writing, neither see nor hear anything out of the deed, seems to sound well, and it would work well in practice, if all who give instructions to scriveners were per

.

Regers vs. Atkinson et al.

fect; if all scriveners perfectly understood their instructions, and put them on paper perfectly according to law; and the whole was completed by executing them at the time, and in the order and manner which their nature and the law requires. But when this perfection cannot be even imagined to exist in this world, and the want of it is as apparent in deeds and other writings as anywhere else, the beautiful theory must yield to substantial justice." This railing accusation against the doctrine, or rather, we should say against the imperfection of everything human, so' far from weakening, but demonstrates its impregnability. Equity comes in, as we shall hereafter see, to relieve the grievances, so vividly portrayed, leaving the rule at law to maintain its undisputed sway.

It is true that counsel occasionally when hard pressed, have insisted that "juries are the legitimate judges of the effect and the weight of evidence, and that the question between written and parol evidence, resolves itself at last into an inquiry as to the weight of evidence only, and that juries ought to have an opportunity of judging whether the terms of the contract are reduced to writing, or as orally agreed by the parties at the time of the transaction shall govern. They contend that to every contract, the consent of two minds at least is necessary, and that it is only on the evidence of such consent that the law enforces the observance of the contract, er furnishes the breach of it. This is an old professional device, to misrepresent the relative value of testimony, and it requires a degree of judicial excellence scarcely attainable to guard against the acuteness of counsel, when the known rules of evidence apply directly against. their client. Who does not recollect the ingenious effort of the great Roman Orator, in his elegant oration for the poet Archias to elevate parol evidence even above records? (a)

But the reply uniformly from the Bench is-"The preference which the law gives to written evidence, when compared with parol testimony of parol agreements, is the unavoidable result of experience. It is impossible to expect that certainty or exactness in the one form of evidence which is found in the other; where a contract has been put in writing, assented to, signed by the parties concerned, and continues in being, evidence of other parol stipulations, before and at the same time, to explain or vary the written agreement, would be a rejection of that evidence, which is necessarily the best." While the application of the rule, as now laid down and expounded by the court, is admitted in deeds and other specialties, it has been argued that it did not apply to written simple contracts; that there was no distinction between written and

(a) “Est ridiculum ad ea quæ habemus nihil discere; quærere, quæ habere non possumus; et de hominum memoria, tacere, literarum memoriam flagitare; et, cum habeas amplissimi viri religionem, integerrimi municipii jusjurandum fidemque, ea, que depravari nullo modo possunt, repudiare, tabulas, quas idem dicis solere corrumpi, desiderare."

Which, is translated by Duncan in his copy of Cicero's Orations, as follows: Now is it not ridiculous to say nothing to the evidences which we have, and to desire those which we cannot have; to be silent as to the testimony of men, and to demand the testimony of registers; to pay no regard to what is affirmed by a person of great dignity, nor to the oath and integrity of a free city of the strictest honor; evidences which are incapable of being corrupted, and to require those of registers, which you allow to be frequently vitiated?"