Bunce v. Beck

• Citation: 43 Mo. 266
• Parties: HARVEY BUNCE, Administrator of PRESTON BECK, Defendant in Error, v. JAMES P. BECK, Executor of PRESTON BECK, Jr., Plaintiff in Error.
• Decision Date: 31 January 1869
• Court: United States State Supreme Court of Missouri

43 Mo. 266

HARVEY BUNCE, Administrator of PRESTON BECK, Defendant in Error,

v.JAMES P. BECK, Executor of PRESTON BECK, Jr., Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1869.

Appeal from Third District Court.

The letter given by Mrs. Beck to Bunce, administrator, referred to in the opinion of the court, is as follows:

“28 th June, 1865.--SIR: Mrs. Juliet A. Beck and myself have settled our law suit, by her allowing me the sum of twothirds, and one-ninth of the remaining third, of the estate of Preston Beck, Jr., deceased, as claimed by me before the Probate Court of Cooper county. You will please deliver to Mrs. Beck all her equitable rights and assets in your hands, after deducting the said two-thirds, and one-ninth of remaining one-third, just expenses, costs, fees, etc., when she dismisses her suit. You are, I understand, prosecuting the said Juliet A. Beck and her securities, Mr. William Limerick. You will please not prosecute them for money included and allowed them in this settlement of twothirds, and one-ninth of the remaining one-third, to me as aforesaid, and dismiss any suit you may have against the parties for the sum I allowed them in our settlement; i. e., two-thirds, and one-ninth of the remaining one-third, of P. Beck Jr.'s estate is allowed to me, and their portion of the remaining one-third to them; and you will please deliver to Juliet Beck any papers, notes, or documents of said J. A. B. and William Limerick, that will not infringe my two-thirds, and one-ninth of the remaining third, of P. Beck Jr.'s estate, as adjudged by the Probate Court of Cooper county, Missouri.

Respectfully,

J. P. BECK.”

The portion of the deposition of Mrs. Beck touching the meaning of this letter was as follows:

Question 22.--“After you had received the letter addressed to Harvey Bunce, and before you had delivered the same to Mr. Bunce, did you have one or more conversations with James P. Beck concerning said letter and its true meaning? and if so, state what James P. Beck said was the true meaning of said letter, and in regard to said compromise.”

Answer.--“After I had received the letter referred to, and before I had delivered the same to Mr. Bunce, I had two or three conversations with James P. Beck about said letter, its meaning, etc., and asked him, James P. Beck, to explain it so that it could be understood. James P. Beck said that it was plain; that Mr. Bunce was a man of sense, and would understand it, and would give me up the note on that letter, and that was all I wanted; that if Bunce did not do this he would have no sense. He also stated that I should have no more trouble about said note; that there would be still more coming to the children (referring to my children). He also said he would not compromise with the other heirs upon as favorable terms as he had compromised with me.”

The objection to this question and answer was overruled, and exceptions taken.

Question 23.--“In these conversations, did James P. Beck tell you what he intended said letter to Mr. Bunce to mean; and if so, what was the meaning he gave to said letter?”

Answer.--“He did; and assured me repeatedly that Mr. Bunce would give me up my note on that letter.”

Question 29.--“State why you made the compromise with Dr. J. P. Beck on the terms stated?”

Answer.--“I was induced to make said compromise with said Dr. James P. Beck in order to relieve my securities, who were annoyed by the suit on the note in the Lafayette Circuit Court; and, to rid them and myself of this annoyance, I made said compromise.”

The following is a portion of Limerick's deposition touching the same:

Question 6.--“State, as fully as you can recollect, what passed between you and Juliet A. Beck, Dr. James P. Beck, about said letter to said Bunce, and its construction, and if Dr. Beck gave his meaning to or construction of said letter before it was presented to said Bunce. State what his (Dr. Beck's) construction was.”

Answer.--“Mrs. Beck came to me in the city of St. Louis, one afternoon, and told me she had an appointment to meet Dr. James P. Beck at his house, at four o'clock on said afternoon, early in July last, for the purpose of settling all matters of dispute between them, and requested me to accompany her to Dr. Beck's house. That meeting lasted from four o'clock in the afternoon until midnight. At that meeting, this agreement, heretofore referred to, and stated in my answer to the fourth inquiry” (already copied in substance), “was made between J. A. Beck and Dr. James P. Beck. After the agreement was made, most of the time consumed at said meeting was occupied by Dr. James P. Beck in writing an article of agreement between himself and Mrs. Beck, and a letter of instruction to Mr. Bunce, administrator as aforesaid. On reading the letter he had written to Mr. Bunce, as far as he had then written it, I thought it was not satisfactory, and told Dr. Beck, as far as he had then written said letter, he had said nothing about the dismissal of said suit on said $30,000 note in Lafayette county, and the delivery of said note to Mrs. Beck. He then added to the letter what is written in said letter in relation to the giving up of said note to Mrs. Beck, and the dismissal of said suit thereon. At that time (the time of said writing) we had considerable conversation about the ambiguity and circumlocution of said letter, and I requested Dr. Beck to permit me to write a direct order to Mr. Bunce, directing him to dismiss said suit on said note, and to give up said note to Mrs. Beck, which he (Dr. Beck) refused to do, saying that Mr. Bunce, on that letter which he (Dr. B.) had written, would not refuse to give up said note and dismiss said suit; and that if the said Bunce so refused to do, that he (Dr. B.) would go himself to Boonville and have the business settled as understood between himself and Mrs. Beck; and Dr. B. repeatedly made use of such utterances as the one last above mentioned.”

The questions and answers objected to in Silver's deposition are of the same character with those referred to in Mrs. Beck's and Limerick's, and need not, therefore, be particularly stated.

W. B. Napton, for appellant.

The parol evidence allowed in this case--to contradict the written contracts and orders, to establish that Beck meant, and declared that he meant, the very reverse of what he wrote--was improperly allowed. (Greenl. Ev. ch. 15.) The general rule undoubtedly is that all previous and cotemporary conversations are merged in the written contract. (1 Greenl. Ev. § 281; Gooch v. Conner, 8 Mo. 391; Gregory v. Cowgill, 19 Mo. 416; Rollin v. Claybrook, 22 Mo. 406; Cawthorn v. Haynes, 24 Mo. 236; Bradley v. Bradley, 24 Mo. 315; Smith v. Thomas, 29 Mo. 310.)

To ascertain, however, what meaning the parties intend to convey by the words they use in a written instrument, parol evidence of extraneous facts and circumstances may be admitted to a very great extent without infringing the general rule; and Mr. Greenleaf has furnished us with a very full and exact detail of all the classes of cases in which this is permitted. Let us see if the present can be brought, by any sort of ingenuity, within any of these classes.

1. “All cotemporaneous writings relating to the same subject matter are admissible.” This principle we adopt and use in our evidence, and the court will see that it utterly destroys the theory of the opposite party.

2. Fraud, illegality, want of consideration, duress, infancy, imbecility, etc., may be proved to avoid a written contract. There is no pretense in this case of any of these things. They propose not to avoid the contract, but to change it.

3. Where the original contract is verbal, and only part of it is reduced to writing, the remainder may be supplied by parol. Nothing of this is pretended here.

4. Recitals of facts may be contradicted to show that the consideration money was more than stated in the deeds. This has no bearing on our case.

5. Parol evidence may be given explanatory of the nature and qualities of the subject to which the instrument refers; as where a factory is conveyed, it may be shown what this embraced and included. Courts may put themselves in the place of the party; i. e., ascertain his relations and surroundings, in order better to understand what he meant. But no case can be shown, nor has any been cited by Greenleaf under this head, where proof is admissible to show that a party declares his meaning to be other than that contained in the instrument itself. Yet this is the very thing which all the plaintiff's evidence is intended to show. All the proof introduced is to show that Beck meant so and so; that he said his letter to Bunce meant so and so; that the paper would accomplish such and such results.

This point is fully discussed and decided by Lord Abinger in Hiscocks v. Hiscocks, 6 Mees & W. 363. There was in that case an attempt, not, as here, to explain the words or meaning of the paper (which, it seems, would have admitted of no doubt), “but to supply some deficiency, or remove some obscurity, or to give effect to expressions that were unmeaning or ambiguous.” Now, this is the plausible pretext assumed in this case, and let us see what Lord Abinger said on this point. “There is,” he observes, “but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is, on the face of it, perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises as to which of the two or more things, or which of the two or more persons, each answering the words in the will, the testator intended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors, of north S. and south S., it being clear that he means to devise one only, whereas both are equally denoted by the words he has used, in that case there is what Lord Bacon calls...