Gorsuch v. Rutledge

• Decision Date: 01 March 1889
• Citation: 17 A. 76,70 Md. 272
• Parties: GORSUCH v. RUTLEDGE.
• Court: Maryland Court of Appeals

17 A. 76

70 Md. 272

GORSUCH v. RUTLEDGE.

Court of Appeals of Maryland

March 1, 1889

Appeal from circuit court, Carroll county.

Action to recover liquidated damages, brought by Rufus F. Rutledge against Thomas J. Gorsuch. Judgment for plaintiff, and defendant appeals.

Argued before MILLER, ROBINSON, IRVING, STONE, BRYAN, and MCSHERRY JJ.

David N. Henning and Geo. L. Stocksdale for appellant.

James A. C. Bond and Wm. H. Thomas, for appellee.

BRYAN J.

The declaration in this case averred that Rutledge and Gorsuch entered into an agreement under seal for the renting of certain premises in the town of Hampstead, Carroll county, belonging to Gorsuch, and that in said agreement the parties bound themselves, for its true and faithful performance, in the sum of $50 as liquidated damages It was also averred that Gorsuch had refused to deliver to Rutledge possession of the premises according to the terms of the agreement. Gorsuch, the defendant, pleaded that the agreement was delivered to one Meyerly as an escrow, on the condition that it should become operative as a lease only upon the plaintiff's obtaining possession of the premises from the then occupants without the intervention of the defendant. Additional pleas were afterwards filed by leave of the court.

The first plea ought to have contained an averment that the condition had not been performed upon which the agreement was to become operative as a lease. We need not, however consider this question, as no objection was made to the pleadings in the court below, and consequently no question upon them can arise in this court. The plaintiff offered in evidence the agreement under seal, and also his own testimony that a previous parol agreement had been made for the renting of the property, and that Lewis C. Meyerly, at plaintiff's request, reduced to writing the agreement for renting, but, defendant being dissatisfied with it, Meyerly took a memorandum for a new agreement, which he wrote, and which is the instrument of writing offered in evidence; and that both plaintiff and defendant signed it, and Meyerly witnessed it, and that it was agreed that Meyerly should hold the agreement as the custodian of both parties, and that he did so. The plaintiff also testified that he had demanded of the defendant possession of the premises in question, but had been unable to obtain it. On cross-examination of the plaintiff, the defendant asked him "to state all that was said between him and the defendant, or between defendant and said Meyerly, in the presence of the plaintiff, before the signing and executing and delivery of said agreement, on the subject of the renting of the premises in the said agreement mentioned." On objection by the plaintiff, the court refused to permit the question to be asked, and the defendant excepted. When parties have made a written agreement, the writing is regarded as the exclusive evidence of the contract, and all oral negotiations and stipulations preceding or accompanying the execution of the written instrument are merged in it. As a consequence, they are not admissible in evidence. It is true in this case that the plaintiff had given evidence of some previous negotiations between the parties about the renting of this property. They could not, however, affect the construction of the written agreement, or any right derived from it. The evidence was incompetent and irrelevant. It did not, however, authorize the introduction of testimony of the same kind on the part of the defendant. In Railroad Co. v Woodruff, 4 Md. 255, we find the law thus stated. In Walkup v. Pratt, 5 Har. & J. 56, the court held that, "if the counsel for the appellee had offered improper...