Stallings v. Gottschalk

Briscoe, J., delivered the opinion of the Court. This is an action of assumpsit by the appellee against the appellant. The declaration contains the common counts for money lent, for mouey had and received, for money found due plaintiff on account stated, and a special count for money due the plaintiff by the defendant on a contract between them in reference to the management of a grocery, liquor and provision business in the town of Upper Marlboro’, Maryland. There was filed with the declaration a bill of particulars showing the nature of the plaintiff’s demands.

The defendant pleaded never indebted, payment, set-off, and filed an account in bar. The questions for our consideration are presented upon exceptions to certain testimony and to the prayers. The objection to the plaintiff’s third prayer, and to the rejection of the defendant’s prayers, was waived and abandoned. It appears by the first hill of exception that the defendant proved that the business under the original contract between them had been greatly enlarged by parol agreements from time to time, including that of hotel keeping and others ; that heavy expenses had been incurred by the defendant in conducting for the plaintiff, these various occupations, out of which a part of the indebtedness sued for in the case arose ; that the net cash from these various pursuits including the liquor, provision and grocery business, specifically mentioned in said contract, had been remitted to the plaintiff; that the articles charged to defendant in the hill of particulars were furnished to carry on in part the business ; that a portion of these expenses the ⁴³³ defendant paid with part of the proceeds of sale of goods charged to defendant in the bill of particulars, and a portion he paid with his own private funds, and that all •of this was with the knowledge and authority of the plaintiff, who had made a verbal agreement about these expenses.

The defendant then offered to prove the agreement, but upon objection the Court refused to allow this proof. This testimony we think was clearly admissible. It is well settled that it is not competent for a party to prove an oral agreement contradictory of or inconsistent with the written contract, but any collateral, independent fact, about which the written agreement is silent can be given in evidence. In this case the written contract had terminated by limitation, while the claim sued upon covered in part a period of three years.

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