Fusting v. Sullivan

Bowie, J., delivered the opinion of the Court. The first exception of the appellants, is taken to the admission of certan parol evidence, offered by the appellee (the plaintiff below) to prove that in the contract between the plaintiff and witness on the one part, and the appellants’ intestate, on the other part, for the purchase of the stock of goods, etc. it was verbally agreed between the parties, during the negotiation and before the contract was concluded, that they bought with the distinct understanding, that Fusting, the appellants’ intestate, would not go into ¹⁶⁷ business in Catonsville, and that tlie acquisition of the good-will of the store, and agreement of Fusting, not to set up a store in Catonsville, was part of the consideration of the purchase. This testimony was first offered upon the hypothesis, that the contract for the purchase of tlie stock of goods, lumber, good-will of store, and agreement on the part of Fusting not to set up another store in Catonsville, was not reduced to writing ; after the witness had deposed it was not, and that the agreement for the sale of the good-will and that Fusting would not set up another store in Catonsville, was not reduced to writing, and that Fusting said, it was unnecessary to reduce it to writing, the appellants’ counsel objected to all the evidence of the witness, with reference to the contract of purchase, mentioned by him, in case it should turn out there was a written contract. The Court ruled if such should prove to be the case, the evidence would he inadmissible, but further decided, that if there was such a written contract in possession of the appellants, (the defendants) they should then produce it, to prevent the introduction of testimony that might after-wards he found to be improper upon its production.

The appellants then produced and proved the execution of a written paper, dated Catonsville, Sept. Vth, 1866, purporting to be an agreement entered into by J. P. Fusting, of the first part, and John O. Sullivan and Columbus J. Shipley, of the second part, to the following effect, viz : “The said J. P. Fusting has agreed to sell, to the parties of the second part, his store, house, lumber yard, barn and barn yard, as it now is enclosed, for the sum of $10,500, subject to a ground rent of sixty dollars per year, one-third cash, the balance in two yearly payments, viz: in payments of two years apart, after deducting three thousand dollars now due on the above estate. The party of the second part will convey a lease of a lot from J. K. Smith of 56 feel front by 160 feet deep, and take all the stock in ¹⁶⁸ trade in the store, and in the lumber yard at cost on its market value, adding hauling for lumber and coal as agreed upon. The payment for the latter being also one third cash; the balance to be secured by endorsed notes and bill of sale. [Signed.] J. P. Fusting-. J. C. Sullivan.

C. J. Shipley. The appellants, then renewed their objections to the testimony of Shipley, as to the alleged purchase of the good-will of the store, and the alleged agreement of Fusting not to set up another store in Catonsville, because said alleged purchase and agreement, were not in said written contract, and moved the Court to exclude all of said testimony from the jury, which the Court refused, whereupon the appellants excepted — which constitutes the first exception. After the evidence was closed, the defendants in pursuance of a right of exception, reserved as to all the evidence offered by the plaintiff tending to establish his right to recover damages, on account of the alleged breach of contract on the part of Fusting, in setting up a store at Catonsville, prayed the Court, to instruct the jury, as follows : “ That there is no sufficient legal evidence in this case, to entitle the plaintiff to recover anything, on account of the opening of the store at Catonsville by the defendants’ testator,” which instruction, the Court refused. The rejection of the appellants’ motion to exclude the parol evidence of Shipley, which was the ground of their first exception, and of their before cited prayer, (which forms a part of the second exception,) presents the same question, — the admissibility of parol evidence in cases of written contract. ¹⁶⁹ The general rule is well defined, with exceptions broadly delineated, in all the text books, illustrated by almost innumerable decisions.

The test of admissibility in such cases, is, whether the evidence offered, tends to alter, vary, or contradict the written contract, or only to prove an independent collateral fact, about which the written contract was silent. In the former case, the testimony is inadmissible; in the letter, it is competent and proper. The case Bladen vs. Wells & Wife, is a good illustration of the former, and Basshor & Co. vs. Forbes, of the latter. In Bladen vs. Wells, the grantors by their deed, in consideration of §1300, conveyed to the grantee, certain lands therein described; afterwards, they filed their bill, alleging that at the time of the sale, the appellant (the grantee) agreed, that if the lands contained not more than 140 acres, it was to belong to the appellant, but if more, the appellant was to