Gayle v. Hudson

10 Ala. 116

• Court: Supreme Court of Alabama
• Decided: June 15, 1846
• Status: Published

Opinion

COLLIER, C. J.

The most important inquiry in this cause is, whether it is allowable to show by parol evidence, a mistake in the name of one of the obligees, and whether Jamies instead of Jones was intended. It is admitted as a general rule, where parties have enterred into a contract in writing, they are presumed to have expressed their agreement truly, and cannot be allowed to add to, vary, explain or contradict it by parol testimony, but it is insisted that the proof in the present case, and the purpose for which it was offered, does not come within the rule, or forms an exception to its operation. The parol evidence showing to what cause the bond was intended to apply, would show the mistake and furnish the means of its correction.

We will briefly consider the most direct authorities with respect to the point, that have come under our notice. Parol evidence, it is said; is not admissible to show that the person described as grantee was not the one intended. [Milling v. Crankfield, 1 McC. Rep. 262.] Or that a lease reserving rent to one person for his own use, was intended for the benefit of another. [Jackson v. Foster, 12 Johns. Rep. 488 ; see also, Comstock v. Van Deusen, 5 Pick. Rep. 163; Treadwell v. Buckley, 4 Day’s Rep. 395; Bell v. Morse, 6 N. H. Rep. 205; Jackson v. Bowen, 1 Cain’s Rep. 358; Den ex dem, &c. v. Coward, 2 Murp. Rep. 77; Hamilton’s lessee v. ., 3 H. & McH. Rep. 437; Linscott v. Fernald, 5 Greenl. Rep. 496.]

So it has been held that parol evidence is inadmissible to show that Robert, the Christian name of a party, used in a record, meant Henry. [Woody and Heirs v. Thalkeld, 1 A. K. Marsh. Rep. 10.] In Gould v. Barnes, 3 Taunt. R. 504, it was decided if a party enter into a bond by a wrong Christian name, he should be sued thereon in the name in which he "executes it. A declaration against him by his right name stating that he executed the bond by the Avrong name, is bad. The bond Avould have estopped him from denying the name which he gave to himself, and if he pleaded in abatement, it might be replied that he was known as well by the one name as by the other. [5 Blackf. Rep. 60 and cases there cited.] The case of Thompson v. Gray, 2S. & P. Rep. 60, contains a dictum which is not in harmony Avith that last cited. That was an action of covenant, for the recovery of rent upon an instrument by which Gray rented to Thompson for the year 1828, all his open land on the north west quarter of section 31, township 7, and range 11, Avest, except, &e., for which Thompson agreed to pay, on or before the first of January, 1829, two dollars per acre. The court below admitted evidence on the part of the plaintiff, showing that there was a mistake as to the description of the land, viz: that it was in the sixth instead of the seventh township. This court conceded that the county court erred in receiving the evidence, yet thought the declaration might have been so drawn as to have entitled the plaintiff to recover in covenant; that the rule which will not allow parol evidence to contradict a contract in writing, “extends only to a material part of the contract.” “If there is a mistake in the date of the instrument, the explaining of which can have no effect upon the time of payment, or if the bond be executed to A B, instead of C D, the plaintiff may state in his declaration, that the bond was executed to him by the name of A B, or that it was made on the 15th but by mistake dated the 16th, &c.; for these explanations cannot produce any injury to the defendant, nor offer any inducement to perjurv. But it would not be competent for the plaintiff to declare on the agreement according to its face, and attempt by parol to make proof which would vary the description of the instrument so much from that contained in his decoration. So we believe in this case, the plaintiff might have, ifi his declaration, stated the land was part of the sixth township, but was by mistake described in the deed as part of the seventh, and the contract was carried into execution according to the intent of the parties. It could not affect the rights of the parties in the least, to admit such an explanation. It would be totally immaterial to the defendant, whether the land lay in one township or another, so that he enjoyed the use of it, according to the agreement, and it would equally as immaterial a fact as to the date of a bond, or theWiristian name of a payee.”

Coleman v. Crumpler et al. 2 Dev. Rep. 508, is relied on by the counsel for the plaintiffs in error, as strikingly analogous in its facts, and entirely defensible in principle. The action in that case was debt, upon a bond executed by the defendant to the plaintiff, in the sum of $25Q0, conditioned, “ that if the said John Crumpler, shall and will perform and abide by such final decree as may be made against him by the honorable Judges of the supreme court of North Carolina, in the suit now pending in said court, wherein the said Isaac Coleman is complainant, and said John Crumpler and Mary Crumpler are defendants in equity,” then, &c. Upon a trial before the jury, the plaintiff produced the record of a cause in the supreme court, between Isaac Coleman; plaintiff, and John Crumpler and Mary Coleman, defendants, in which the defendant, Crumpler, was directed to give a bond similar to the one declared on in this action, and which was by a subsequent order of court remanded for hearing to the court of equity, &c., and also a final decree of the court below, in which the defendant, Crumpler, was directed to pay the plaintiff $1150, with interest. He then offered to prove by the clerk of the supreme court, that the cause decided by that court, and afterwards by the court below were identical, but by mistake the name of Mary Crumpler instead of Mary Coleman was inserted in the condition. This evidence was objected to, and excluded, upon the ground that it tended to control the record, or the bond, and the judgment was affirmed on appeal. The supreme court considered it too clear for argument or authority that a written document cannot be made to meamftny thing but what it imports in itself — it cannot be contradicted. “ Parol evidence can neither bend the bond to the record, nor the record to the bond — it was therefore properly rejected.” Again, “The record offered to support the breach, proved that there was a decree in a suit wherein, Isaac Coleman was plaintiff, and John Crunypler and Mary Coleman were defendants, which Crumpler had failed to perform.” This evidence did not support the issue on the part of the plaintiff. In Brown v. Gilman, et al. 13 Mass. Rep. 158, which was an action upon a written promise with a blapfc for the name of the promissee, the question iwas whether ¿uch a paper could be transferred to a third person so as to invest him with the right to sue in his own name. The court said, “ authorities have been read to show that where a contract in writing has been made and signed, but the name of the party with whom it was made, omitted, the omission may be supplied by extrinsic evidence. Of this we have no doubt, where the name was omitted by mistake, or & wrong name inserted. And the authorities go no further.”

This paper was never intended to contain the name of any one but the signer. It was a personal acknowledgment between him and the person to whom it was delivered. That person alone can maintain an action upon it.”

Where a bond recited, that the attachment issued before it was executed, it was held that the recital could not be contradicted by parol evidence. [Hutcheson v. Ross, 2 A. K. Marsh. Rep. 349.] But where, by a comparison of the bond and attachment, it appeared that the former was filed several days previous to issuing the latter, this was considered sufficient to show, that the recital was false. [Summer v. Glancey, 3 Blackf. Rep. 361.]

The citations we have made are the most pertinent we have been able to find touching the admissibility of parol evidence in a court of law, to contradict or vary written instruments, we will now inquire into the jurisdiction exercised by courts of equity upon this matter. In the interpretation of written instruments, courts of equity and law have concurrent jurisdiction, but where the question is, what the parties intended, to let in parol evidence of a mistake, with a view to its correction, the jurisdiction of equity is exclusive. But except in those cases where issue may be, and is taken upon the question of intention as an independent fact, the powers; of that court are neither greater nor less than those of a court of law — both are limited to the office of interpretation, and neither can admit parol evidence to add to, or vary the terms of an instrument. [See Hunt v. Rousmaniere’s Adm’r, 8 Wheat. Rep. 174, and 1 Pet. Rep. 15; Lyon v. Richmond, 2 Johns. Ch. Rep. 51, and 14 Johns. Rep. 501; Lammat v. Browby, 6 H. & Johns. Rep. 24; Naylor v. Wench, 1 Sim. &, Stu. Rep. 561; Hubbard v. Martin, 8 Yerg. Rep. 498; Allen v. McMasters, 3 Watts’ Rep. 181; Jushoe v. Proctor, 6 Monr. R. 311; Abbe v. Goodwin, 7 Conn. Rep. 377; Glassell v. Thomas, 3 Leigh’s Rep. 113; Morris v. Edwards, 1 Hamm. Rep. 189: Stebbins v. Eddy, 4 Mason’s Rep. 414; Quesnel v. Woodlief, 6 Call’s Rep. 218; Macher v. McDowell, 4 Bibb’s Rep. 473; Washburn v. Merrills, 1 Day’s Rep, 189; De Reimer v. Cantillon, 4 Johns. Ch. Rep. 85; Pattison v. Hull, 9 Cow. Rep. 755; King v. Stubbs, 14 Sergt. & R. Rep. 206; Gibson v. Watts, 1 McC. Ch. Rep. 490; Paysant v. Ware & Barringer, et al. 1 Ala. Rep. N. S. 160; 3 Phil. Ev. C. & H’s Notes, 1434-5, and cases there cited; Gray v. Woods, 4 Blackf. Rep. 432; 3 Starkie’s Ev. 1018; 1 Story’s Eq. 164-5; Helm v. Wrightand another, 2 Hump. Rep. 72.]

In McCall, Smilie & Co. v. Harrison, 1 Brockb. Rep. 126, a deed of trust purported to be made for the benefit of John McCall & Co. though the debt intended to be provided for was due McCall, Smilie, & Co. Upon a bill praying relief by the latter firm, it was held that the mistake should be corrected, and that the debt intended to be secured by the deed should be paid to the complainants.

It is said, sometimes by mistake the written agreement contains less than the parties intended; sometimes it contains more; sometimes it simply varies from their intent by expressing something different in substance from the truth of that intent. In all such cases, if the mistake is clearly made out, by proof entirely satisfactory, equity will reform the contract, so as to make it conformable to the precise intent of the parties. But if the proofs are doubtful, and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief; upon the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy. [See 1 Story’s Eq. 164-5.]

If the names of the libellants were intended to have been inserted as the obligees in the bond, and one of them was not written so as to indicate him truly, there can be no doubt, but the plaintiffs could show the mistake; whether parol evidence would be admissible for that purpose in a court of law, is far more questionable. The remark in Thompson v. Gray, that the rule which inhibits the introduction of parol evidence to contradict a contract in writing, extends only to a material part, and if a bond be executed to A B, instead of C B, the latter may state in his declaration, that the bond was executed to him by the name of A B, is clearly a mere dicium, uncalled for by the decision of any point which was in judgment. The reason assigned by the court, viz : that the explanation could not produce injury to the defendant, nor offer an inducement to perjury, is palpably unsound, and if acted upon, would make the application of the rule difficult, embarrassing, and altogether uncertain. This case then cannot be regarded as an authority. In Brown v. Gilman, et al. supra, the ruling of the court upon the question before it is not disputed. The writing declared on was a promise to pay a sum of money, subscribed by the promissor, with a blank for the promisee’s name, and it was held that it enured only to the person to whom it was first delivered, with the intention to impose a duty. So it was nothing more than a dictum of the court, that where a wrong name-is inserted by mistake, the name intended may be supplied by parol. Bills and notes payable to J S, or “ship Fortune, or bearer,” are in legal effect payable to the bearer, and if payable to a fictitious payee, are considered as payable to bearer, and may be declared on as such in favor of a bona fide holder, ignorant of the fact against all the parties, knowing that the payee was a fictitious person. [Chitty on Bills, 9 Am. ed. 178.] The same author says, “ if by mistake a bill or note has been drawn in terms different from the intention of the parties, the error may be corrected by consent of such parties, and this without requiring any fresh stamp. And it should seem, that a court of equity will relieve in this respect, even against a surety, as well as a principal, and compel all parties to give a proper bill or note, according to the original intention.” [Ib. 189.]

In Sumner v. Glancey, as well 'as in Hutcheson v. Ross, supra, parol evidence to show the recital in a bond, that an attachment had issued, was adjudged to be inadmissible, and in the former case the recital was , only rendered harmless by its denial in the attachment — a part of the record of the same suit. The cases of Woodyard’s Heirs v. Thelkeld; Gould v. Barnes, and Coleman v. Crumpler, et al. supra, are most an-alagous to the present — the latter strikingly so. In each of them, the points we have noticed were directly in judgment, and all of them regard the name of a party in a bond, or record, as a material part of it, in respect to which, in the absence of fraud, it is not permissible to show a mistake.

The case at bar is clearly distinguishable in principle from Meredith v. Richardson & O’Neal, at this term. In that case the variance was in the description of the fieri facias in the forthcoming bond. The execution was described as having issued against the goods, Ac. of J L, requiring to be made, for debt, damages, and costs, $2,743, and that which really issued, required to be made of the goods of J L, W H C, L J M, and A J S, for debt, damages, and cost, $2492 50. These discrepancies it was held, prevented the bond from operating, so as to give the obligees the statute remedy, but as they were not of the essence of the contract,' but matters of recital, they did not vitiate it; and consequently it was competent to maintain a common law action against the obligors, and recover for the breach of the condition, and if necessary parol evidence was admissible to show to what execution the bond applied.

Chapel v. Congdon, et al. 18 Pick. Rep. 257, was a case similar in principle to the last cited. That was an action of debt on a bastardy bond, the condition of which recited, that the accusation was made in 1816, instead of 1833. The learned Judge who delivered the opinion of the court, remarked, “ A mistake, obvious to all, has been made by the magistrate in the draught of the bond. If it be in a matter of substance, it will be fatal; if it be only redundant matter of description, which is not necessary to be literally proved, the claim may be supported, if enough remains to establish the identity.” The gist of the accusation was, that the individual charged was the father of the child of which the plaintiff was then pregnant, which if born alive would be a bastard. “ Whatever is essential to the description of that accusation may not be rejected.” But the converse, it is said, is true, viz: that redundant allegations not essential to the charge, need not be proved, and may be rejected, if the allegations and proof, independently of them, are sufficient to maintain the accusation. The same principle was applied in Colburn v. Downs, 10 Mass. Rep. 20; Shrewsberry v. Boyston, 1 Pick. Rep. 105; Judge v. Morgan. These citations sustain not only Meredith v. Richardson & O’Neal, supra, but clearly show the difference between that case and the one now at bar. Starkie, in his treatise on evidence, (3 vol. 1529,) says, “It is a most general rule, that no allegation which is descriptive of the identity of that which is legally essential to the claim, or charge, can ever be rejected.”

The mistake in the name of one of the obligees, is in a most essential and vital part. It enters into the legal obligation of the contract, and it results from what has been already said that it should not have been corrected by the admission of parol evidence on the trial at law. Whether the obligors would not be estopped, (if the estoppel could avail any thing) from denying that there were such proceedings, by libel, &c. as the condition of the bond describes, need not be considered, as the production of the record, to prove that the event had happened upon which the condition became absolute, would show a variance which, we have seen, would be incurable at law.

It is abundantly shown by the citations to the point, and what we have said, that a court of equity is entirely competent to reform the bond, so as to make it speak the intention of the parties, upon satisfactory proof being adduced of the mistake. Our conclusion is, that an action cannot be sustained in the name of the present plaintiffs. The view taken is decisive of the case; the judgment is consequently reversed and the cause remanded.