Smith v. Williams
| Decision Date | 31 July 1810 |
| Citation | 5 N.C. 426 |
| Court | North Carolina Supreme Court |
| Parties | DANIEL SMITH v. OBED WILLIAMS. |
1. A having sold a slave to B, and given to B a written instrument. setting forth "that for the consideration of $300 he had sold the slave to B, and that he would warrant and defend the slave against the claims of all persons," but setting forth nothing as to the soundness of the slave; B shall not be permitted to set up a parol warranty of soundness, and recover on it against A.
2. This would be to add by parol to a written contract.
3. The parties, by making a written memorial of their transaction, implicitly agree that in the event of any future misunderstanding, that writing shall be referred to as the proof of their act
and intention; that such obligations as arise from it by just construction or legal intendment shall be valid and compulsory on them, but that they do not subject themselves to any stipulation not set forth in the writing. For if they meant to be bound by any such, they might have added them to the writing, and thus have given to them a clearness, a force, and a direction which they could not have by being trusted to the memory of a witness.
4. Where anything forming part of the contract is left out of the writing by fraud or accident, or anything forming no part of the contract is inserted by fraud, parol evidence may be received to prove these facts.
5. But where nothing is omitted or inserted in the writing, through fraud, accident or mistake, parol evidence shall not be received to show that the agreement of the parties was otherwise than the writing sets forth.
THIS was an action on the case for a breach of warranty in the sale of a negro. The declaration stated, "that the defendant warranted the negro to be sound and healthy as far as he knew; that the negro was unsound and unhealthy, being afflicted with a rupture, and that the defendant well knew he was so afflicted at the time of the warranty and sale." The jury found a verdict for the plaintiff, subject to the opinion of the court on a point of law reserved in the course of the trial, viz., Whether the plaintiff could be permitted to prove such a warranty, when at the delivery of the negro upon the sale he received from the defendant a written instrument, butnot under seal, in the following words:
Know all men by these presents, that I, Obed Williams, of the county of Onslow and State of North Carolina, have bargained and sold unto David Smith, of the aforesaid county and State, one negro fellow, named George, about thirty years of age, for and in consideration of $300. I do warrant and defend the said negro against the lawful claim or claims of any person or persons whomsoever, unto him, the said Smith, his heirs and assigns forever. Given under my hand this 29 January, 1802.
This instrument had been proved in Onslow County Court, and registered. The point reserved was sent to this Court.
The contract between the parties is stated at length in the special case, and appears to be both formally and substantially a bill of sale in all respects, except as to the want
of a seal. This omission, however, is so important in the legal estimation of the paper that it cannot be classed amongst specialties, but must remain a simple contract, on which no additional validity can be conferred by the subsequent registration. For I do not apprehend that any legal effect can be given to a paper by recording it, if that ceremony were not required by law.
It might not, however, be an useless inquiry to consider whether a paper containing nearly all the component parts of a specialty or deed does not advance some greater claims to be respected in the scale of evidence than such proofs of a contract as rest upon the memory of witnesses.
The solemnity of sealed instruments has been, from the earliest periods of the law, highly regarded, because the forms and ceremonies which accompany them bespeak deliberation in the parties, and afford a safe ground for courts and juries to ascertain and settle contested rights. Thisdeliberation is inferred, not from any one circumstance attending the transaction, but as the general effect of the whole. Thus in Plowd., 308, B.: "It is said that deeds are received as a lien final to the party making them, although he received no consideration, in respect of the deliberate mode in which they are supposed to be made and executed; for, first, the deed is prepared and drawn; then the seal is affixed; and lastly, the contracting party delivers it, which is the consummation of his resolution." Hence it appears that the law gives to deeds a respect and importance which it denies to any other contracts; not an empty and unmeaning respect, but such as properly arises from the existence of all those circumstances which are calculated to fix and make authentic the contracts of men.
A contract cannot be a deed if either it is not prepared and drawn, if the seal be not affixed, or if it be not delivered; but, still, if the deliberation is inferred from all these circumstances, it is fair reasoning to presume some degree of deliberation from any one or two of them, and to give to the paper, when it is introduced as evidence of the parties' transaction, precisely such credence as belongs to it from its partaking more or less of the nature of a deed.
To give this rule a practical application to the case before us, the conclusion would be that as the paper is without a seal, it cannot be a deed, and is therefore not decisive evidence as that instrument is; it is not a final lien; but as it possesses some of the essentials of a deed, viz., a formal draft and delivery, so far it shall be regarded as evidence of no slight nature of the fact it is introduced to establish.
The writers on the law of evidence have accordingly, in arranging the degrees of proof, placed written evidence of every kind higher in the scale of probability than unwritten; and notwithstanding the splendid eloquence of Cicero to the contrary, in his declamation for the poet Archias, the sagesof our law have said that the fallibility of human memory weakens the effect of that testimony which the most upright mind, awfully impressed with the solemnity of an oath, may be disposed to give. Time wears away the distinct image and clear impression of the fact and leaves in the mind uncertain opinions, imperfect notions and vague surmises.
It is, however, contended by the plaintiffs that contracts by our law are distinguished by specialty and by parol; that there is no third kind, and that whatever is not a specialty, though it be in writing, is by parol. To establish this position, a case is cited from 7 Term, 350, by which it is certainly proved. But the position being established, whether it will authorize the inference that parol evidence is admissible to vary and extend written evidence will best appear from an examination of the case, and from some attention to the question which called for the solution of the Court.
In the case cited the declaration states that the defendant, being indebted as administratrix, promised to pay when requested, and the judgment is against her generally. From this statement it is manifest that the promise could not be extended beyond the consideration which was in another right as administratrix, and made to bind the defendant personally. But in order to avoid this objection it was contended that the promise being reduced to writing the necessity of a consideration was dispensed with, and that the fact of its having been made in writing might well be presumed after verdict, if necessary to support the verdict, which latter position was conceded by the Court.
It is, then,...
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