Boyce v. Wilson

Maulsby, J., delivered the opinion of the Court. This action is to recover money paid by mistake under a count for money had and received. At the trial the plaintiff ¹²⁶ offered two prayers which were rejected, and the Cour.t granted the following prayer of the defendant: “That there is no sufficient evidence, to shew such a mistake in the contract of April 15th, 1864, and the deed of Wilson to Boyce and Rieman, as will entitle the plaintiff to recover in this action,” and the plaintiff appealed. In the view which we take of the case, we do not deem it material to determine whether the defendant’s prayer, in the terms used, was properly granted or not.

The contract offered in evidence by the plaintiff is a written contract, in which the consideration expressed is ninety thousand, three hundred and twenty-two dollars, and that sum was paid by appellant to appellee. The ground of the appellant in this suit is that the consideration, which ought to have been expressed in the written contract was eighty-one thousand, two hundred and fifty dollars, and that he paid nine thousand and seventy-two dollars too much, by reason of the fact that the written contract did not contain the true contract between the parties to it. He was permitted by the Court below to offer parol evidence, and to prove that the written contract was intended to embody a verbal agreement previously made. His counsel asked him, testifying as a witness,- “ what the agreement was which resulted in the written contract, and whether there was any mistake in the amount of consideration stated in the contract?” And again, whether the consideration stated in the written contract “ was the true consideration for the property agreed to be conveyed,” or whether there was any mistake, and if so, what it was, and how it arose?

The witness replied, in substance, that he and the appellee had agreed by parol that he was to purchase from the appellee certain real estate, and mining stocks, at certain valuations, and that, after negotiating for some time, they finally made a calculation of the amount which he was to pay for the same, and that the sum ascertained by the calculation was ninety thousand, three hundred and twenty-two dollars, that afterwards, the agreement was reduced to writing, and embodied that sum as the consi ¹²⁷ deration, and that the contract offered in evidence was that writing, that when it was executed he was not aware that the said sum was not the correct consideration, hot that sometime afterwards he discovered that the calculation had been made on an erroneous basis, and that the sum which ought to have been expressed in the written contract was eighty-one thousand, two hundred and fifty dollars, that before this discovery was made by him the real estate and stocks had been conveyed and transferred to him, and he had paid the full sum mentioned in the written contract. The alleged mistake was in the calculation made before the written contract, and was carried into that contract-. Can the parol evidence vary the written contract, by striking therefrom the consideration expressed in it, and inserting in its stead another reduced consideration ? The plaintiff has made, no mistake which a Court of Law can correct, if he has paid only that sum which his contract obliged him to pay.

He cannot recover at law a sum paid by mistake, unless that sum were over and above what he had contracted to pay. The question inevitably recurs, what was the valid contract, the precedent parol agreement, or the subsequent written contract ? There can be but one answer. The case of Morton and Chandler, 7 Greenleaf, 44, is directly to the point in this case.

On page 46 the Court says: “ How, the plaintiff, in order to maintain the present action, attempts to prove, by parol evidence, that, by mistake, the sum secured by this instrument was too large. Can he do this ? It is a well known rule of law that parol evidence is not admissible to vary the meaning of a deed, or to explain that which is apparent upon the face of it.” And again, the Court says that the party “would not be permitted to introduce parol evidence to shew a mistake, and thus vary the effect of the sealed instrument;” that he could not accomplish indirectly that which he could not do directly; that he could not, in an action for money had and received, shew what he would be estopped from shewing in an action on the deed. That he might prove ¹²⁸ fraud, and thereby avoid the legal effect of the instrument.

And, in 5 Vermont, 152: “Parol evidence is inadmissible to contradict, vary or explain a written contract, or to shew it different from what it purports to be on the face of