Roberts v. Bonaparte

• Decision Date: 04 December 1890
• Citation: 20 A. 918,73 Md. 191
• Parties: ROBERTS et al. v. BONAPARTE.
• Court: Maryland Court of Appeals

20 A. 918

73 Md. 191

ROBERTS et al.

v. BONAPARTE.

Court of Appeals of Maryland.

Dec. 4, 1890.

Appeal from Baltimore court of common pleas.

Argued before ALVEY, C.J., and MILLER, IRVING, McSHERRY, BRYAN BRISCOE, and FOWLER, JJ.

Charles Marshall, for appellants. Bernard Carter, Wm. A. Fisher, and Wm. Reynolds, for appellee.

MILLER, J. The controversy in this case is over a contract relating to the packing and sale of canned corn and tomatoes. The parties are widely apart as to what the contract actually was, as to its construction, and as to their respective rights and obligations under it. The appellants contend that the entire contract is embodied in the two written papers dated the 27th of February, 1888; that no parol or extrinsic evidence is admissible to modify or vary it; and that, by its true construction, the appellee is personally responsible to them for the moneys advanced to him under it, just as if it had been so much money loaned to him by them. On the other hand, the appellee insists that these papers do not contain the entire contract; that there was a verbal agreement between them, made at or before the date of these papers, to the effect that his responsibility was to be limited to seeing that the money advanced to him by the appellants should be applied by Clagett, the packer, to the purpose of canning corn and tomatoes at the cannery in question, and not wasted or devoted by Clagett to any other purpose; that this was the extent of his liability; and that this parol agreement is in no wise in conflict with anything contained in these papers, construed, as they must be, in the light of surrounding circumstances, and the relation of the parties to each other and to Clagett at the time they were signed. The testimony of the appellee as to the making of this parol agreement, and as to conversations at various interviews he had with the appellants, and their testimony in contradiction of his version of such conversations, as well as other written documents, and a large number of letters which passed between them, and between the appellants and Clagett, and others in relation to the business in question, some dated before, and some after, the 27th of February, 1888, were offered in evidence. All this testimony was allowed to go to the jury by agreement of counsel, subject to exception. When the testimony was all in, the court was not requested by either party to exclude any portion of it from the consideration of the jury, except in so far as the appellants' first prayer may be regarded as an exception to the admissibility of so much of the appellee's testimony as relates to the parol agreement referred to. A number of prayers were offered on both sides, and the only exception taken to the rulings of the court below is to the rejection of the appellants' first and third prayers, and the granting of the appellee's seventh prayer.

By the exception, this ruling is the sole subject of review in this court, and we shall first consider whether there was any error in granting the appellee's seventh prayer, because we regard that as the most important question in the case. By granting this prayer, the court instructed the jury that it was their duty "to determine whether or not the whole of the contract between the plaintiffs and defendant was embraced in the two paper writings offered in evidence, signed by the plaintiffs and defendant, respectively, and dated the 27th of February, 1888; and if they shall find that the whole of the contract was not embraced in the said two paper writings, then it will be their duty further to find, from all the evidence in the cause, what the said contract was." Assuming the testimony to be admissible, this instruction asserts—First, that it is for the jury to find therefrom whether the contract was wholly in writing, or partly in writing and partly in parol; and, second, if they find it of the latter character, then they, and not the court, are to decide from all the evidence, written and oral, what the contract, as a whole, actually was. Now, in the first place, it is a proposition about which there can be no doubt that a contract may be partly in writing and partly in parol. This is recognized in all the numerous cases in which the courts have held that parol evidence is admissible to prove some independent collateral or suppletory verbal agreement about which the written contract is silent; and this court, in McCreary v. McCreary, 5 Gill & J. 157, 158, has adopted the language of Starkie in his work on Evidence, where it is said: "It may be shown that a parol contract was made independently, wholly collateral to, and distinct from, a written one made at the same time. In such cases, the parol evidence is used, not to vary the terms of the written instrument, but to show either that it is inoperative as an entire and independent agreement, or that it is collateral and irrelevant; and, in many instances, the terms reduced to writing may constitute but a small part of the real contract."

When cases of this kind occur, is it for the court or jury to determine what the real contract is? and if for the latter, have they a right to consider all the evidence, written as well as oral, bearing upon the subject? The general rule undoubtedly is that the construction of all written documents is a question of law for the court, and, when a contract is sought to be made out from such documents alone, it is for the court to ascertain and determine its construction, whether the documents are many or few. So, where technical terms are used in a written contract, and parol testimony is introduced as to the meaning of such terms which necessarily goes to the jury, the court will give them conditional instructions as to the effect of the contract, according as they may find the meaning of such terms to be. But this is not a case of that character. The question here is, upon the assumption that this contract was partly in writing and partly by parol, are the jury at liberty to determine from all the evidence in the cause, written as well as oral, what the contract actually was"' We are not aware of any case in Maryland in which this precise question has arisen and been decided; but it would seem to be well settled by decisions of the highest authority elsewhere. Thus in Bolckow v. Seymour, 17 C. B. (N. S.) 107, the suit was on a contract, and there had been a long correspondence and various interviews between the parties, of which parol evidence was given. At the trial, Lord Chief Justice ERLE left it to the jury to say whether, taking the whole of the correspondence and the parol evidence together, there was any such contract as that declared on. This ruling was affirmed by the court of common pleas on motion for a new trial on the grounds of misdirection, and that the verdict was against the weight of evidence, KEATING, J., saying: "I think it is clear that parol evidence was admissible to show what was the real contract between the parties, and, that being so, the whole must necessarily be a question for the jury." Again, in Moore v. Garwood, 4 Exch. 681, it was held by the court of exchequer chamber that, as the evidence in the case did not depend altogether upon written instruments, but upon other matters of fact, it was a question for the jury, and not for the judge, to determine what was the contract between the parties. In Foster v. Assurance Co., 3 El. & Bl. 79, it was said by Lord CAMPBELL, C. J.: "If there was any parol evidence on which the issue was to depend, then, according to the well-known rule clearly stated by PATTESON, J., in delivering the judgment of the exchequer chamber in Moore v. Garwood, the whole was for the jury." Also, as bearing on the same subject, reference may be made to Smith v. Thompson, 65 E. C. L. 44, and Power v. Barham, 4 Adol. & E. 473. Counsel for the appellee have also cited a large number of cases decided by the federal and state courts of this country to sustain the same position. Among them, reference may be made to Etting v. Bank, 11 Wheat. 76; Brown v. McGran, 14 Pet. 479; Goddard v. Foster, 17 Wall. 142; Farwell v. Tillson, 76 Me. 239; Smith v. Faulkner, 12 Gray, 256; Jennings v. Sherwood, 8 Conn. 127; Edwards v. Goldsmith, 16 Pa. St. 43; McKean v. Wagenblast, 2 Grant, Cas. 466; Foster v. Berg, 104 Pa. St. 324; Fagin v. Connoly, 25 Mo. 94. The same doctrine is also stated by the text-writers. Thus in 1 Tayl. Ev. § 36, it is said that "where a contract has to be made out partly by letters, and partly by parol evidence, the jury must deal with the whole question." So, in 1 Story, Cont. § 18, it is said: "If a contract is to be made out partly by written documents, and partly by oral evidence, the whole becomes a question for the jury." The law is also stated to the same effect in 1 Thomp. Trials, § 1083. It is to be observed that the seventh instruction does not leave it to the jury to construe the contract, but simply to find what it was, and we are of opinion the court below committed no error in granting it.

The appellants' first prayer asserts among other things that" by the contract, bearing date February 27th, offered in evidence, the defendant became bound, personally, to account to the plaintiffs for the money to be advanced by them under said contract, according to its terms and conditions, and the jury are not at liberty to consider the testimony of the defendant, Charles J. Bonaparte, on the stand in this case, which was received, subject to exception, to the effect...