Thomas Roberts & Co. v. Bonaparte

Miller, J., delivered the opinion of the Court. The controversy in this case is over a contract relating to the packing and sale of canned corn and tomatoes. The parties are widely apart as to what the contract actually was, as to its constrliction, and as to their respective rights and obligations under it. The appellants contend that the entire contract is embodied in the two written papers dated the 27th of February, 1888; that no parol or extrinsic evidence is admissible to modify or vary it; and that, by its true construction, the ¹⁹⁷ appellee is personally responsible to them for the moneys advanced to him under it, just as if it had been so much money loaned to him by them.

On the other hand, the appellee insists that these papers do not contain' the entire contract; that there was a verbal agreement between them, made at or before the date of these papers, to the effect that his responsibility was to be limited to seeing that the money advanced to him by the appellants shoirld be applied by Clagett, the packer, to the purpose of canning corn and tomatoes at the cannery in question, and not wasted, or devoted by Clagett to any other purpose; that this was the extent of his liability; and that this parol agreement is in no wise in conflict with anything contained in these papers, construed,, as they must be in the light of surrounding circumstances, and the relation of the parties to each other and to Clagett at'the time they were signed. The testimony of the appellee as to the making of this parol agreement, and as to conversations at various interviews he had with the appellants, and their testimony in contradiction of his version of such conversations, as well as other written documents and a large number of letters which passed between them, and between the appellants and Clagett, and others, in relation to the business in question, some dated before and some after the 27th of February, 1888, were offered in evidence. All this testimony was allowed to go to the jury by agreement of counsel, subject to exception. When the testimony was all in, the Court was not requested by either party to exclude any portion of it from the consideration of the jury, except in so far as the appellants’ first prayer may be regarded as an exception to the admissibility of so much of the appellee’s testimony as relates to the parol agreement referred to.

A number of prayers were offered on both sides, and the only exception taken to the rulings of the Court below is to the rejection of the ¹⁹⁸ appellants’ first and third prayers and the granting of the appellee’s seventh prayer. By the exception, this ruling is the sole subject of review in this Court, and we shall first consider whether there was any error in granting the appellee’s seventh prayer, because we regard that as' the most important question in the case. By granting this prayer, the Court instructed the jury that it was their duty “to determine whether or not the whole of the contract between the plaintiffs and defendant was embraced in the two paper-writings offered in evidence, signed by the plaintiffs and defendant, respectively, and dated the 21th of February, 1888; and if they shall find that the whole of the contract was not embraced in the said two paper-writings, then it will be their duty further to find, from all the evidence in the cause, what the said contract was.” Assuming the testimony to be admissible, this instruction asserts, first, that it is for the jury to find therefrom whether the contract was wholly in writing, or partly in writing and partly in parol; and second, if they find it of the latter character, then they, and not the Court, are to decide from all the evidence, written and oral, what the contract, as a whole, actually was. Now, in the first place, it is a proposition about which there can be no doubt that a contract may be partly in writing and partly in parol.

This is recognized in all the numerous cases in which the Courts have held that parol evidence is admissible to prove some independent collateral or suppletory verbal agreement about which the written contract is silent; and this Court, in McCreary vs. McCreary, 5 G. & J., 157, 158 , has adopted the language of Starkie in his work on Evidence, where it is said “it may be shown that a parol contract was made, independently, wholly collateral to and distinct from a written one made at the same time. In such cases the parol evidence is used, not to vary the terms of the writ ¹⁹⁹ ten instrument, but to show either that it is inoperative as an entire and independent agreement, or that it is collateral and irrelevant; and, in many instances, the terms reduced to writing, may constitute hut a small part of the real contract.” When cases of this kind occur, is it for the Court or jury to determine what the real contract is ? and if for the latter, have they a right to consider all the evidence written as well as oral hearing upon the subject ? The general rule undoubtedly is that the construction of all written documents is a question of law for the Court, and when a contract is sought to be made out from such documents alone, it is for the Court to ascertain and determine its construction, whether the documents are many or few. So, where technical terms are used in a written contract, and parol testimony is introduced as to the meaning of such' terms which necessarily goes to the jury, the Court will give them conditional instructions as to the effect of the contract, according as they may find the meaning of such terms to be.

But this is not a case of. that character. The question here is, upon the assumption that this contract was partly in writing and partly by parol, are the jury at liberty to determine from all the evidence in the cause, written as well as oral, what the contract actually was ? We are not aware of any case in Maryland in which this precise question has arisen and been decided; hut it would seem to he well settled by decisions of the highest authority elsewhere. Thus in Bolckow vs. Seymour, 17 Com.

Bench, N. S., 107, the suit was on a contract, and there had been a long correspondence and various interviews between the parties, of which parol evidence was given. At the trial Lord Chief Justice Erle left it to the jury to say whether, taking the whole of the correspondence and the parol evidence together, there was any such contract as that declared on. This ruling was affirmed by the Court of Common Pleas on ²⁰⁰ motion for a new trial on the grounds of misdirection, and that the verdict was against the weight of evidence, Keating, J., saying: “I think it is clear that parol evidence was admissible to show' what was the real con tract between the parties, and, that being so, the whole must necessarily he a question for the jury.” Again, in Moore vs. Garwood, 4 Excheq., 681, it was held by the Court of Exchequer Chamber that as the evidence in the case did not depend altogether upon written instruments, hut upon other matters of fact, it was a question for the jury, and not for the Judge, to determine what was the contract between the parties. In Foster vs. Mentor Life Assurance Company, 3 Ellis & Black., 78, it was said by Lord Campbell, C. J., “if there was any parol evidence on which the issue was to depend, then, according to the well-known rule clearly stated by Patteson, J., in delivering the judgment of the Exchequer Chamber in Moore vs. Garwood, the whole was for the jury.” Also, as hearing on the same subject, reference may he made to Smith vs. Thompson, 65 Eng.

C. L. Rep., 44, and Power vs. Barham, 4 Adol. & Ellis, 473. Counsel for the appellee have also cited a large number of cases decided by the Federal and State Courts of this country to sustain the same position. Among them reference may he made to Etting vs. Bank of the United States, 11 Wheat., 76 ; Brown & Co vs. McGran, 14 Pet., 479 ; Goddard vs. Foster, 17 Wallace, 142; Farwell vs. Tillson, 76 Me., 239; Smith, Adm’r vs. Faulkner, et al., 12 Gray, 256 ; Jennings vs. Sherwood, 8 Conn., 127 ; Edwards vs. Goldsmith, 16 Penn. State Rep., 43; McKean vs. Wagenblast, 2 Grant’s Cases, 466 ; Foster vs. Berg & Co., 104 Penn.

State Rep., 324; Fagin vs. Connoly, 25 Mo., 94 . The same doctrine is also stated by the text writers. Thus, in 1 Taylor on Evidence, sec. 36, it is said that “where a contract has to he made out partly by letters and partly by parol evidence, the jury ²⁰¹ must deal with the whole question.” So in 1 Story on Contracts, sec. 818, it is said “if a contract is to be made out partly by written documents and partly by oral evidence, the whole becomes a question for the jury.” The law is also stated to the same'effect in 1 Thompson on Trials, sec. 1083. It is to be observed that this seventh instruction does not leave it to the jury to construe the contract, but simply to find what it was, and we are of opinion' the Court below committed no error in granting it.

The appellants’ first prayer asserts, among other things,.that “by the contract bearing date February 27th, offered in evidence, the defendant became bound, personally, to account to the plaintiffs for the money to be advanced by them under said contract, according to its terms and conditions, and the jury are not at liberty to consider the testimony of the defendant, Charles J. Bonaparte, on the stand in this case, which was'received subject to exception, to the effect that he did not so become personally responsible under said contract.” If this part of the instruction is erroneous, the Court was clearly right in rejecting it. It must be noticed that the particular part of the testimony of Mr. Bonaparte here referred to, is the only testimony which was asked to be excluded from the jury, and this Court is not at liberty to consider the admissibility of any of the other testimony taken in the case. It is true it is stated in the bill of exceptions that a great deal more of it was taken subject to exception, but in such case it is incumbent on the party objecting, before or at the close of the evidence, to apply to the Court, either by motion or prayer, to exclude the portion to which he objects, and thus have the question of its admissibility definitely disposed of by the Court below by its ruling on such application. If this is not done, the benefit of the original objection cannot be availed of in this Court. ²⁰² “The mere statement in a hill of exceptions that certain evidence was offered and objected to, but admitted subject to the objection, to be disposed of at a subsequent stage of the trial, does not by any means raise the question here as to the admissibility of such evidence.” Basshor & Co. vs. Forbes, 36 Md., 154 .

The admissibility of this particular part of the testimony being, then, the only subject of review, let us see what the two papers of the 27th of February, 1888, which the appellants insist contain