Richards v. Fuller

• Decision Date: 20 June 1877
• Court: Michigan Supreme Court
• Parties: George H. Richards v. Edward P. Fuller et al

37 Mich. 161

George H. Richards v. Edward P. Fuller et al

Supreme Court of Michigan

June 20, 1877

Argued June 14, 1877

Error to Kent. (Hoyt, J.)

Assumpsit on a promissory note made by Richards to Warren S. Hale May 6th, 1874, and transferred to defendants in error by endorsement. It was given for part of the purchase price of a lot of logs which Hale himself held under contract from Isaac Stauffer, dated Jan. 5th, 1874, and covering all the cherry walnut, basswood, white ash and maple timber on all or any of the lands owned by Stauffer in Caledonia township, to be delivered at Caledonia station in lumber. Hale endorsed upon this contract the following assignment: "For a valuable consideration to me in hand paid by George H. Richards, the receipt whereof is hereby confessed and acknowledged, I hereby sell, assign and set over unto the said George H Richards all my right, title and interest in and to the within bill of sale or contract, to have and to hold the same unto the said George H. Richards, with all the rights interests, privileges and advantages that I would have, had not this assignment been made. Signed and dated this 6th day of May, 1874. Warren S. Hale." The defense to the suit on the note was that the logs had fallen short of a verbal warranty alleged to have been made by Hale when he sold them. Testimony offered by Richards to show what statements and representations Hale had made with regard to the kinds and amounts of the logs sold, and that he warranted these statements to be true, was rejected on the ground that the assignment and contract were in writing and had been put in evidence, and therefore could not be varied by parol testimony. The defense being thus excluded, judgment was given against Richards on the note, and he brought error. Reversed.

Judgment reversed, with costs, and new trial ordered.

Taggart & Wolcott for plaintiff in error. Where only part of an entire contract has been reduced to writing, the fact may be shown, and the remainder proved by parol. 2 Pars. Cont. 553; Deshon v. Merchants' Ins. Co. 11 Met. 199; Edwards v. Goldsmith 16 Penn. St. 43; Coates v. Sangston 5 Md. 121; Ballston Spa Bank v. Marine Bank 16 Wis. 136; Doty v. Martin 32 Mich. 462. It is much more competent to show that before or at the time the writing was made and delivered other contracts not inconsistent with it were made, and that the writing came into the transaction only incidentally. The conveyance from Stauffer was less formal than a bill of parcels, which is always subject to parol evidence to show the real agreement of sale. 1 Phil Ev.; Cowan & Hill's Notes 385, n 229; 2 id. 603, n 295; Fletcher v. Willard 14 Pick. 464; Hazard v. Loring 10 Cush. 267; Foot v. Bentley 44 N.Y. 166.

J. A. Fairfield for defendants in error, cited Martin v. Hamlin 18 Mich. 354; Vanderkarr v. Thompson 19 Mich. 82; Van Ostrand v. Reed 1 Wend. 424, 431; Mumford v. M'Pherson 1 Johns. 414; India Rubber Co. v. Adams 23 Pick. 256; Smith v. Dallas 35 Ind. 255, 260; Robinson v. McNeill 51 Ill. 225; Helmrichs v. Gehrke 56 Mo. 79; Randall v. Rhodes 1 Curt. 90; Dean v. Mason 4 Conn. 428; Oelricks v. Ford 23 How. 49.

OPINION

Marston, J.

Whether all the logs contracted for in this case were by the parties understood to be only the logs sold by Stauffer to Hale in the writing of January 5th, 1874, would seem to be immaterial. The written assignment made by Hale to Richards is not such a written contract between the parties as would preclude plaintiff in error from showing by parol the agreement actually entered into. This assignment was not complete in itself and did not purport to set up the entire agreement. It may have been made pursuant to the agreement entered into and in part performance thereof, and this was what defendant below offered to show. We are of opinion that this evidence was admissible and should have been received for the purpose for which it was offered. The case comes clearly within previous rulings of this Court. See Phelps v. Whitaker ante p. 72, and cases there cited, and Trevidick v. Mumford 31 Mich. 467; Sirrine v. Briggs 31 Mich. 443; Rowe v. Wright 12 Mich. 289; Bowker v. Johnson 17 Mich. 42; Facey v. Otis 11 Mich. 213.

Judgment reversed, with costs, and new trial ordered.

The other Justices concurred.

Parol showing may be made of the non-existence of the subject matter of the contract (Gibson v. Pelkie 37 Mich 380); or to apply the instrument to the subject matter (Hyler v. Nolan 45 Mich. 357, 7 N.W. 910); or of want of delivery (Atwood v. Gillett 2 Doug. (Mich.) 206); or of the meaning of terms (Bancroft v. Peters 4 Mich. 619; North American Fire Insurance Co. v. Throop 22 Mich. 146); though not to show that they were used in an unnatural or hidden sense (Trowbridge v. Dean 40 Mich. 687); or of additional matters agreed on, if consistent with the written contract (Loud v. Campbell 26 Mich. 239 and note; Seaman v. O'Hara 29 Mich. 66; Gillett v. Bowman 43 Mich. 477, 5 N.W. 661; Mason v. Phelps 48 Mich. 126, 11 N.W. 413; Skeels v. Starrett 57 Mich. 350, 24 N.W. 98; Weiden v. Woodruff 38 Mich. 130); or of the actual...