Hodges v. Heal

14 A. 11, 80 Me. 281, 1888 Me. LEXIS 49

• Court: Supreme Judicial Court of Maine
• Decided: March 10, 1888
• Status: Published

Opinion

Peters, C. J.

The case, unencumbered by immaterial statement, comes to this: The defendants, having committed a trespass upon the woodland of the plaintiffs, tenants in common, purchased the interest of one of the plaintiffs in the land, giving, according to a receipt, three hundred and seventy-five dollars therefor. Now, are the defendants permitted to show that the consideration of the receipt, the three hundred and seventy-five dollars, not only paid for the interest in the land, but by contemporaneous verbal agreement also settled the trespass previously committed by the defendants upon the land.

The question touches very closely the principle which prohibits the reception of oral evidence to change the effect of a written contract. Still, we think the evidence offered was admissible on the theory, advanced in the case of Farrar v. Smith, 64 Maine, 74, that it affects merely the amount of consideration paid, and not the substance of the contract. It allows evidence to show that the real consideration paid for the land was less than stated, and that the whole sum was really paid for the land and something besides. In the case cited the consideration in the deed was paid for the farm and something in addition not named in the deed. A consideration may be proved to be either more or less than the sum stated in a deed or other written contract. The principal contract is not varied, but is made to be the groundwork or consideration of another contract. It is not unlike the case of a lumberman buying land, inclusive of the timber already cut down upon it by him, or of a tenant buying a house in which he lives, inclusive of rent for past occupation, the deed in either case not mentioning that the consideration was paid for anything but the land. In such cases, it only affects the amount of the consideration, to be permitted to prove by oral evidence that the indebtedness for stumpage or occupation was also settled in the principal transaction.

The plaintiffs contend that, being tenants in common, the interest of thetwo in the lumber cut by the trespass, could not be settled or released by one. That is incorrect. Either could collect or release the claim. Though their estates are several, the damages are one, so to speak, are common to both estates and belong to them jointly. Bradley v. Boynton, 22 Maine, 287; Kimball v. Sumner, 62 Maine, 305, 310.

Exceptions overruled.

Walton, Danporti-i, Libbey, Emery and Haskell, JJ., concurred.