Clarke v. Russel

IN Error from the Circuit Court, for the Diftrhft of Rhode-If and. Ón the return of the Record, it appeared that a declaration, containing the following Count, had been filed in an a ilv, Ace. 363. BulLN., P. 270. Lov. 81. 76.7. 10 Stat. at Large, p. ' 1,1 CY. at L. 106. 5 Burr. 2671. 2. 8- Mod. 80, 1 131 .-Kid. 137. 140. 1⅜ 2 T. Rep. 713. 2nd. Thátthe Comí below,gave ¡C in chargeto the Jury, that the letters written by Cierk and Nightingale, amounted to a guarantee of any engagement, into which Robert Murray & Co. might enter with the Plaintiff: whereas the letters did not import fuch a guarantee; there was no other written evidence of it before the Jury; and a collateral undertaking to pay the debt of another, muff be* in writing agreeably to the Enslifli Statute of Frauds, (29. Car. 2- c. 3.) which is in force in Rhode-ljland., Qowp. 227. For any miftake of a Judge, in his directions or decifions upon a trial, a bill of exceptions may be tendered. 3 Bl. C. 37 2. Reg. Brc. 282. 2 Injl. 287'- Even before the fta-tute of -.Frauds, if any concrait was made in writing, the writing muff be produced; and its contents could not be proved-by parol teftimony, on the general principle, that the heft evidence of which the cafe is fufceptible, muff be given. Efp. 780. ⅛. . But fince the ftatute, a promife, like the one now alledged, caiionlybe mádein writing. 3 Woodes,.\20. 1. 2. 4Bl. Com. 439. The tetters do: not contain evidence of fuch a promife. They are not in folrm,. letters of credit, which are a fpecies of bills of exchange, are always confined to money tranfaCtions,. and invariably include a dircCt and pofiti.ve undertaking to repay the money, which (ball be advanced. Bcawcs. L. M. 447. 8. Jacob’s L. D. “Letters, of credit.” Marins 8x. 2. And, it) ftib-ítánce, the letters a e nothing more than letters'of friendly introduction. The Court andarot the Jury are, to confirme all. deeds-.and written inílruments. I T. Rep. 172. If when an opinion .is declared of the folveircy of their frierjds, there had been any deception, an aCtion in the nature of deceit would lie; 3 T. Rep. 51. Peake’, s N. P. 2,26.; but there is no fuch imputa-Vion here, and the words do not import a promife. i Fin. Abr. 261. I Roll. Abr. 6 Noy. II. 2 Com. Rep. 55⅜. Cafe 237 Nor is there any equity againfl: the Plaintiff in error; for, the obligation of a furety.is always ftricfly confirmed according to the letter of his engagement. 2 T. Rep. 266. 366. Telv. 40.1. Peake’s N. P. 226. Efp. Rep. 290. Befides, notice ought, to have been given by Ruffel to Clerk and Nightingale, if he made any advances op account of the letters; and the mere finding of the ajfumpfit will not let in a prefumption that fuch a notice was given. Marius 85. Efp. 290. 442.. The fiifi: Count isa fpecial Count, and mult be proved as it is laid; Doug. 24. But as thofe letters would apply as well to any other fpeculation, as to.the indorfementof the bills of exchange, the fpecial Connt is no notice of the contrail given in evidence.* The Plaintiff ftrould have Hated in the declaration all the inducements, ihould have fet forth the letters, ihould have averred, that R.uffe'l was the agent of Clerk and Nightingale, and that in corifideration of their requeflr, the bills had been indorfed. But the declaration does not even aver, that they ever made the requeflr, in con-fideration of which the bills were indorfed, Doug., 659. 3d. That the promife ¿Hedged to be made in the letters of Clerk and Nightingale, ought not to have been explained by„ parol teflrlmor.y: for fuch teftimony is not admifilbleto explain a deed, or any written inftrument.* 2 Bl. Rep. 1249.1 Efp. 780. ^ Wil. 275. Ca. temp. Talb. 240. 3 T. Rep. 474. 6 T. Rep. 671. Doug. 24: 2 Roll' Abr. 27b- X Aik. 13. Poiv. Cont. 277. 290. New Annual Regi/ler 1795. Day vs. Barker et al. Poiv. Cont. 373. 1 P. Won. 618.. Poiv. Mart. 61. Pow. Cont. 431. 2 Atb 384. x Br. Ch- 90. Gilb, L. of E. 5. 6. ri2. 3 Woodes. 327. 8. ■X Br. Ch. 54. 93. 4. 2 BL Rep. X249. 1250. 1 71 Rep. 180. I’ 2. Bull. N. P. 269. 280. Telv. 40. 2 Ve%. 56. 232. it was anfwered,—lit. That there was no neceffity to produce, or to prove, á protefl: for nonacceptance of the bills of exchange. 3 Dali. Rep.'pfg,, 344. 2nd. That even admitting the letters oí Clerk ⅛* Nigbtin-gale to be part of the record (which, however, was conteftedj the deciiion of the court below was right; for, on a juft con-, ftrudtion of their contents, they import a promife, or guarantee; and the téVms of the letters ought to be taken moft ftrong-1 ly againft the writer. \ Bac. Sr. 168. 2 T. Rep. 366. 3d. That the parol -evidence at the trial was properly admitted. The bill of exceptions ftates,- that the evidence pafled to .the jury without, exception, the counfel only objs&ing, after-wards, to its applicability. Where objectionable evidence is given, and not objected to, but admitted by the Defendant's-counfel, it is no ground for a bill of exceptions. The applicability of the evidence to the letters, was a matter of faCfc for the jury, not the court, to determine; and on that point the court laid nothing, though they were of opinion, that the written-pron/ife might be explained by parol teftimony. What the teftimony was, do.es not appear: *nor does it appear that the Court was Qf opinion, that the promife might be explained by 'the parol teftimony, fpecifically, wbofe applicability the coun-iel denied, though the Jury have found that it did apply. 3 Salk. 373* Bull. N. P. 317. Where the parol teftimony was given, without objection, how could the court interfere? It muft operate with the Jury, and the party conferred that it ihould operate, by allowing that it ihould be delivered, without objeftion. it does not appear, indeed, that the ftatute of frauds was infilled on; and, certainly, it is not neceflary to ftate a written promife in the declaration. 1 T. Rep. 451. Bull. N. P. 279. 2 Jones 158- Nor will the Court apply the ftatute to the cafe, if the party does not. 'Peake 15. But even where the ftatute has been pleaded, parol teftimony has been attended to, in explanation of written contrails. Skin. 142. ¾. 2. Vent. 361. Efp. 78b. If, however,, the conftruction of the letters is correit, on the part of the Defendant in error, the bare declaration of the Court below, that parol teftimony might explain them, will not invalidate his right of recovery; and this Court will not reverfe a judgment rendered upon con-cl ulive 'evidence, appearing on the record, though improper evidence may afterwards have been admitted.' The general rule is, that parol teftimony- is admiffible to explain, though not to contradi^, a writing. Thus, it has been admitted, in confiftence with the' writing, to ihew a confideration other . than that, which the,deed itfelf.exprefled; 3. T. Rep. 474.. tS expliiin a certifieateiif a Pauper’s fettlement; 7. 1. Rep. 609. 2. Bt. Repi 1250. to ihew whether a cellar was comprehended within a leafe; I. T. Rep. 70i. to explains Will; 2. Fez., 216. and to prove a miftake in an agreement 1 Fez. 456. It has been admitted to ihew declarations at, and after, the writing; 1 Cha. Ca: i8o. 1 DalL Rep. 193-; 426. 1 Átk. 448. ⅞ DalL Rep. tji. 173. 196, to afcertain a fad under a Will; ⅜ Dali: Rep., jo. to rebut an equity; to prove legacies augmented, not repealed; 1 Bró. Ch.,448. 2. Br. Ch. 521. to prove the advancement of a fum of money to be an ademption of a legacy; 2 Jtk: 48. 3 Jtk. 77. 8- 2 Bra. Ch. 165. 519. SO. 21. 2 Fez. 28- and to prove the intention of the father,as-to the mode of education, on a devife of guardianfhip. 2 Fez. 56. It is admitted in cafes of refúlting trulls ; and conllantly in mercantile contrails. 2 Fez. 33Í. in fine, the llatute fpeaks, not only of the contrail being in writing, but of forne note or memorandum of the contrail; and, therefore, any memorandum. in writing of the intent of the parties (fuch as the letters in queftion) will ferve to take the cafe out of the llatute.