Wood v. Moriarty

• Decision Date: 19 March 1887
• Citation: 9 A. 427,15 R.I. 518
• Parties: WOOD and another, Copartners, v. MORIARTY.
• Court: Rhode Island Supreme Court

9 A. 427

15 R.I. 518

WOOD and another, Copartners,

v. MORIARTY.

Supreme Court of Rhode Island.

March 19, 1887.

Plaintiffs' petition for a new trial.

Daniel R. Ballon and Frank H. Jackson, for plaintiffs.

James Tillinghast, for defendant.

DURFEE, C. J. This is assumpsit for the price of lumber furnished to one Joshua W. Tibbetts for use in the erection of two houses for the defendant, Tibbetts having entered into a written contract with the defendant to build the houses before the lumber was furnished. Tibbetts, after going on for a while in the execution of the contract, released it or assigned it to the defendant by an instrument under seal. The instrument begins by reciting the existence of the contract, and proceeds as follows, to-wit: "Now, know ye, that for good and sufficient reasons, and in consideration of the sum of twenty-five dollars paid to me this day by said Moriarty, I hereby transfer and assign said contract back to said Thomas Moriarty, he hereby agreeing to relieve me from further obligation under it, and I hereby releasing him from all claims or demands of whatever kind I may have or have had up to this day, August 26, 1885, against said Moriarty; I hereby acknowledging full payment for said claims and demands, and this shall be his receipt in full for the same to date, meaning hereby to convey to said Moriarty all my right, title, and interest into and under said contract, desiring to relieve myself from completing the work under the contract, and hereby agree to withdraw from said work on said houses, and leave them to his sole charge and care." At the trial testimony was introduced, or offered, to prove the purchase of the lumber, the execution of the release or assignment; that the defendant, besides paying the consideration recited therein, agreed, by way of further consideration, to pay all bills incurred by Tibbetts on account of the contract released; that among these bills was the bill of the plaintiffs for lumber; and that notice of the arrangement between Tibbetts and the defendant was given by Tibbetts to the plaintiffs. The testimony as to the agreement to pay the bills incurred by Tibbetts was allowed to go in de bene esse, and at the close of the testimony for the plaintiffs the court directed a nonsuit. The plaintiffs petition for a new trial. The questions are whether the plaintiffs were entitled to prove by oral testimony that the defendant agreed to pay the bills incurred by Tibbetts under his contract, by way of further consideration for the release or assignment, and, if so, whether, upon proof thereof, the plaintiffs could maintain their action.

The general rule is that parol evidence is inadmissible to contradict, add to, subtract from, or vary the terms of any written instrument; but, when the instrument is a deed, it is held to be no infringement of the rule to permit a party to prove some other consideration than that which is expressed, provided it be consistent with that which is expressed, and do not alter the effect of the instrument. 1 Greenl. Ev. § 304. In Miller v. Goodwin, 8 Gray, 542, it was held that an agreement under seal by a man with a woman, who afterwards became his wife, to convey certain real estate to her in consideration of past services, could be supplemented by parol proof that the agreement was for the further consideration of marriage between the parties. See, also, Villers v. Beamont, 2 Dyer, 146a; 2 Phil. Ev. *655. In McCrea v. Purmort, 16 Wend. 460, the consideration of a deed conveying land was expressed to be money paid, and it was held that parol evidence was admissibie to show that the real consideration was iron of a specified quantity, valued at a stipulated price. Murray v. Smith, 1 Duer, 412; Jordan v. White, 20 Minn. 91, (Gil. 77;) Tyler v. Carlton, 7 Me. 175, Nickerson v. Saunders, 36 Me. 413; National Exch. Bank v. Watson, 13 R. I. 91; 2 Phil. Ev. *655, (Cow. & H. Notes, No. 490.) We think the nonsuit is not sustainable on this ground.

The defendant contends that the agreement was within the statute of frauds, being an agreement not in writing to answer for the debt of another. But an agreement to answer for the debt of another, to come within the statute of frauds, must be an agreement with the creditor. A promise by A. to B. to pay a debt due from B. to C. is not within the statute of frauds. Eastwood v. Kenyon, 11 Adol. & E. 438; Browne, St. Frauds, § 188. The contract here, as made between Tibbetts and the defendant, was certainly not within the statute. The question therefore takes this form, namely, whether the plaintiffs are entitled to take advantage of the contract, and bring suit upon or under it; and, if so, whether to such suit the statute is not a good defense. Some of the cases cited for the plaintiffs cover both these points completely. Barker v. Bucklin, 2 Denio, 45; Johnson v. Knapp, 36 Iowa, 616; Barker v. Bradley, 42 N. Y. 316,1 Amer. Rep. 521; Beasley v. Webster, 64 Ill. 458; Jordanx. White, 20 Minn. 91, (Gil. 77;) Joslin v. New Jersey Car-Spring Co., 36 N. J. Law, 141; Townsend v. Long, 77 Pa. St. 143,146. Similar citations might be multiplied if we cared to load our opinion with them. See Browne, St. Frauds, § 166a, 166, and notes. On the other hand, the cases are numerous which hold that such an action is not maintainable for want of privity between the parties. Mr. Browne, in section 166a, says that this is the settled doctrine in England, Michigan, and Connecticut; that in North Carolina and Tennessee the question seems to remain open; and that in Massachusetts the English doctrine seems to be growing in favor contrary to the earlier cases; but that in the other states the creditor's right to sue has been generally recognized. The course of decisions in this state favors the creditor's right to sue, and in principle we think recognizes it, though it has not hitherto extended to a purely oral contract. Vrquhart v. Brayton, 12 R. I. 169; Merriman v....