Dunklee v. Goodenougel

• Citation: 34 A. 427,68 Vt. 113
• Court: United States State Supreme Court of Vermont
• Decision Date: 17 March 1896
• Parties: DUNKLEE v. GOODENOUGEL.

34 A. 427

68 Vt. 113

DUNKLEE

v. GOODENOUGEL.

Supreme Court of Vermont. Windham.

March 17, 1896.

Exceptions from Windham county court; John W. Rowell, Judge.

Action by Scott Dunklee against C. M. Goodenough. Judgment for plaintiff, and defendant excepts. Affirmed.

Waterman, Martin & Hitt, for plaintiff.

Haskins & Stoddard, for defendant.

TYLER, J. This action is brought upon a promissory note given by the defendant to the plaintiff October 16, 1883, for $40, payable June 1, 1884. An agreement was attached to the note, stating that it was given for a sewing machine, which was to remain the plaintiff's until payment, said payment to be made in spruce and pine boards delivered at Brattleboro. The plaintiff at the same time gave the defendant a writing agreeing to take such boards, delivered at Brattleboro on or before June 1, 1884, in payment, at such price as the Esteys paid. The defendant's testimony was properly admitted. It did not enlarge, vary, or contradict the terms of the written contract. It tended to show a subsequent oral agreement not inconsistent with, but in addition to, the written contract. Steph. Dig. Ev. 134, gives as an instance where oral evidence may be used: To prove "the existence of any separate oral agreement as to any matter of which a document is silent, and which is not inconsistent with its terms, if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them." In Field v. Mann, 42 Vt. 61, it appeared, by a written contract, that the defendant had received of the plaintiff's intestate $300 on a lot of furs billed at a larger sum, and that the money was to apply in payment for the furs. If the parties could agree on the prices. It was held that, as the writing was silent in respect to the time in which the parties should agree, it was competent to show a subsequent parol agreement that the intestate should give the defendant notice within three days whether he would keep the furs and pay for them or not in the present case it was proper for the defendant to show that after the writings were executed a parol agreement was made that, when the defendant had his boards ready for delivery, he should notify the plaintiff of the fact, so the plaintiff might be at home to receive them, and direct the defendant where to unload them, and that he sent the plaintiff such notice. But the parol agreement when...