Jacobs v. Benson

39 Me. 132

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1855
• Status: Published

Opinion

Shepley, C. J.

— Tbe suit is upon an order drawn by James Meaney, in favor of Charles B. Jeques, on the defendant, purporting to be accepted for him by Geo. Gregg. The declaration alleges, that the promise was made to the plaintiff by the name of Charles B. Jeques. The case is not one of variance between the contract described in the declaration, and the one produced in evidence, as in the case of Gordon v. Austin, 4 T. R. 611.

Parol testimony could not be received to vary the contract. It appears to have been offered to prove the .allegation contained in the declaration, that the order was drawn in favor of the plaintiff, and that' the acceptance was made to him.

The general rule of law is, that a mistake made in the name of a grantee, devisee, or promisee, may be corrected by parol testimony. The grant, devise, or contract, is not thereby varied. The only effect is to ascertain the true grantee, devisee, or promisee. Yet there must be something found in the grant, devise, or promise, from which, connected with the parol testimony, the party beneficially entitled is clearly ascertained. Otherwise he might be arbitrarily designated by parol testimony without any written evidence, indicating that any particular person was intended.

A conveyance was made to Eliza Ann Oastin, after she had been married more than a year to Thomas Scanlan, and parol testimony was received to correct the error. Scanlan v. Wright, 13 Pick. 523.

The rules respecting errors in the description of devisees, as well as respecting the description of estates devised, were fully considered in the case of Miller v. Travers, 8 Bing. 244. It is there said, that parol evidence should be received to correct an error, “ where an estate is devised to a person whose surname or Christian name is mistaken.”

Parol testimony was received to prove that a note payable to Ebenezer Hall, was made to a partnership transacting business under that name. Hall v. Tufts, 18 Pick. 455.

A note was made to Elizabeth Willison, and an action was brought upon it by Elizabeth Willis. Parol testimony was received to prove that Willison was inserted by mistake for Willis. Willis v. Barrett, 2 Stark. 29.

Some of the testimony offered was not admissible; but testimony to prove that the order was drawn in favor of the plaintiff, that a mistake was made in writing his name, and that the order was in his hands, and was accepted as due to him, should have been received. Exceptions sustained

and nonsuit taken off.