Neal v. Flint

Sales. Incomplete Contracts. Collateral Agreement. Evidence. Where the whole agreement in reference to the sale of property is embraced in a written bill of sale, parol evidence is inadmissible to contradict, vary or modify the contract which the parties have thus reduced to writing. But if the original contract is verbal and entire, and a part only of it is reduced to writing and embraced in such bill of sale, it is competent to show that fact; or that there was a distinct collateral agreement, not inconsistent with the terms of the written stipulations of the parties, and which constituted in part the consideration of the written agreement, or operated as an inducement for entering into it. This is an exception to the general rule which prohibits the introduction of parol evidence to contradict, vary or modify written contracts. In such case the written contract is deemed to be only partially reduced to writing, and the collateral undertaking or stipulation exists in parol.

On motion and exceptions. This was an action of assumpsit for non-delivery of goods sold, and an independent and collateral, verbal guaranty on the part of the defendant that the goods and chattels, so sold and described, comprised all and the same that were at Winter Harbor in October, 1890, some seven months before the sale. Plea was the general issue. The verdict was for the plaintiff. In 1889 one Roderick Pendleton gave to the'defendant as security fora loan, a mortgage of certain boats, canoes and appurtenances. In the fall of 1890, the mortgage still subsisting, the plaintiff Neal being employed by Pendleton assisted in storing at Winter Harbor what remained of the boats, &c., some having been disposed of by Pendleton in disregard of the mortgage. In November, 1890, the defendant began foreclosure, and in February, 1891, the time of redemption having expired, he instructed one Smith acting as his agent to take possession of them. In the spring of 1891, the parties meeting in Boston, the defendant negotiated with the plaintiff, Neal, to sell him the property, and on May 15th, the defendant, in consideration of twenty-five hundred dollars in notes gave to the plaintiff, Neal, a written bill of sale. On the following day the plaintiff-, Neal, returned to Mr. Flint’s house accompanied by Charles H. Wood and requested certain alterations to be made in the bill of sale. Some formal changes were agreed to, including the naming of a consideration and the insertion of special covenants of warranty, and a new bill of sale embodying these changes was then and there written by Mr. Wood, being copied from first bill of sale and such changes as Mr. Flint would permit, signed by Mr. Flint, delivered to and received by the plaintiff, Neal. (Bill of Sale.) "Know all men by these presents : That I, D. B. Flint, of Boston, in the County of Suffolk and State of Massachusetts, in consideration of one dollar and other valuable consideration paid by Warren P. Neal, of Steuben, Washington County, Maine, and Fred Shaw, of Gouldsboro, Hancock County, Maine, the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer, and deliver unto the said Neal and Shaw, the following goods and chattels, namely, all the boats, canoes, sails, oars, paddles, fittings and fixtures of every kind — more or less — as the same now lie at Winter Harbor, in the care of Charles E. Smith, and wjiich were covered by a mortgage from Boderick Pendleton to me, under date June 26, 1889, and recorded in the records of the-town of Gouldsboro, also all boat-stages, houses and fittings as they now are at Bar Harbor, the same being free from all claims of all persons by, through or under me. Said mortgage having been foreclosed by my attorneys for breach of condition, and the said property coming to my possession by due process of law. 'Said Neal and Shaw assuming all liability for rents, wharfage, or charges from the first day of May, 1891. It being understood and agreed that one good boat, and one canoe, with all fittings for both and all in good condition are reserved. To have and to hold all and singular the said goods and chattels to the said Neal and Shaw and their executors, administrators, and assigns, to their use and' behoof forever. And I hereby covenant with the grantees that I am the lawful owner of the said .goods and chattels: that they are free from all incumbrances, that I have good right to sell the same as aforesaid, and that I will warrant and defend the same against the lawful claims and demands of all persons, claiming by, through or under me. In witness whereof I, the said D. B. Flint, .have hereunto set my hand and seal this 16th day of May, in the year one thousand eight hundred and ninety-one. D. B. Flint, (l. s.)” "Signed sealed and delivered in presence of Charles II. Wood.” The plaintiff immediately after took possession of the property. But it appeared that between the time they were stored at Winter Harbor in the fall and the time of his taking possession in the spring, some of the property had been lost or stolen without the knowledge of either party to the suit. Thereupon the plaintiffs claimed that they had bought and were entitled to all of the boats, &c., that had been stored in the fall, and brought this action. The plaintiffs offered evidence of certain conversations between Neal and defendant and between Neal, Wood and the defendant, before and at the time of the execution of the second bill of sale. This testimony was admitted subject to the defendant’s objections. The testimony so admitted subject to the defendant’s exceptions was as follows : "Ques. Now at the first talk with Mr. Flint did you have any talk referring to what boats were there? Ans. Yes, sir. " Ques. At the time of the talk, with reference to Pendleton’s ownership of them, or to Pendleton’s mortgage of them to Mr. Flint? (Objected to.. Admitted. Defendant excepts.) Ans. Yes, sir. "Ques. Now, then, won’t you kindly state what conversation was had there between you in reference to the identification of the property? What was said there between you and Mr. Flint about what property was there at Winter Harbor that you were buying? — (Objected to. Admitted. Defendant excepts.) Ans. Well, we talked about what I put in there in the fall. "Ques. By the Oourt: — What did you say about what you put in there? Ans. He asked me if I wanted to buy the business, and I told him I did if I could pay for it all right. Then he asked me if I wTanted to make him an offer for the business, in cash or notes, and how much. I told him that depended on what I got. I said, 'If I can have all Mr. Pendle»ton has given you a mortgage of it, it makes one thing, and if I have got to take just what I put in there, that is another.’ I says, 'I had rather find out first, before I make you an offer, whether I can raise the money or not.’ "Ques. That is all there was said at that time ? Ans. That is about all that I remember. "Ques. How soon afterwards did you have another conversation with Mr. Flint? Ans. I went again in three or four days, perhaps a week afterwards, to see him. I was waiting to see a party that was coming through Boston, and then I was going to let him know what I could do about raising the money. As soon as I found out I went and told him I could not raise the money, but I could raise the notes for him if he would take these indorsements. I named the parties. He said he -was going to Winter Harbor in a few days to look after his boats there, and wdien he got back he would let me know, and during his time down there he would see my mother and Mr. Shaw and see what they could do, and when he got back he would let me know. "Ques. What, if anything, did he state about going to Winter Harbor, and his object in going there? (Objected to. Admitted. Defendant excepts.) Ans. He told me that he was going to Winter Harbor to see about the boats, and see if they were all right and everything ; he hadn’t been there since they had foreclosed, and didn’t know what they had done and when he got back he would let me know, and I told him I would like to have him look the boats over. I told him I understood this sloop Eunie had been drifting around, full of ice, etc., and full of water, etc. He said that couldn’t be, for he had paid Mr. Sumner for hauling the boat out and taking care of her. He said he would go down'and see, and when he got back he would let me know what kind of shape they were in. "Ques. What next did you hear about it ? Ans. When he got back from Winter Harbor he let me know and I went out to Commonwealth Avenue to see him. " Ques. That was when he had got back from Winter Harbor ? Ans. That was when he had got back. "Ques. That was the third conversation? Ans. Yes, sir.° "Ques. 'What was it? Ans. I asked him how the boats were, and he said just as I left them in the fall. I asked him if the cat boats were covered up, and he said they were ; that Mr. Smith took the boards off one and laid it on the wharf; that one the cat boat’s halyards were off. I told him that didn’t amount to much, only a dollar or two anyway. He said the boats were all right and in the care of Mr. Smith, and: 'I will assure you they are all right so far as he has had charge of them.’ "Mr. Deasy: This is all subject to our objection. " Witness: Then I asked him if he saw my mother and Shaw, and he said he did. I don’t know as I remember just the talk that he told me that they made with him, but there was something in relation to this boat business, about the notes, etc., and then he asked me to make him an offer for this business, that is, provided I could get these notes all right. He wanted me to make him two offers, one for the boats as I put them in there in the fall, and one for the boats he had a mortgage of and get what I could that Mr. Pendleton had sold. I told him that made a difference ; if I could have what I put in there and they were all right and straight, why I would give him $2500 for what I put in in the fall. I said I had a list of what I put in and he said he had a list of the same. He didn’t show me his and I didn’t ask to see it. I told him if I could have all that he had a mortgage of I would give $2800; he made the remark that he didn’t want to put Pendleton to any trouble because he had trouble enough. He said, 'It was the worst thing I ever done when I lent him the thousand-dollars.’ He says, 'I will take you at your $2500 offer.’ " The Court: Now, what was that offer? Ans. That was an offer for what I put in there in the fall, and had a list of. " The Court: You told him that? Ans. Yes, sir. " The Court: And that is what he said to you ? Ans. Yes, sir. " Ques. Now, to go back a moment, have you that list you made in October, 1890, of the boats and fittings, with you? Ans. Yes, sir. (Produces list.) "Ques. This is the list that you took in October, 1890? Ans. Yes, sir. "Ques. Of the Pendleton boats, etc. ? Ans. Yes, sir.” Said list offered in evidence by counsel for plaintiff. (Objected to. Admitted. Defendant excepts.) "Ques. Without asking detailed questions, will you state the circumstances of, and the wording of a conversation which took place in Boston, 1891, where Mr. Neal and Mr. Flint and you were present, as regards the sale of certain property from Mr. Flint to Mr. Neal ? (Objected to as incompetent, irrelevant and immaterial. Admitted. Defendant excepts.) Ans. I went to Mr. Flint’s house with Mr. Neal, at Mr. Neal’s request, and a letter which I had received from down east from my brother-in-law, and we made known our business to Mr. Flint, and were taken by him to his office. "Ques. Was that in his house? Ans. That was in his house, at 860 Commonwealth Avenue. I told him that I had been asked to come there by Mr. Neal, as well as my brother-in-law, Mr. Shaw, for the purpose of getting a proper bill of sale; that I did not think this writing he had given Mr. Neal hardly covered the ground, and that I would like to have some additions made to it. Then, after we made known our business, I think we went up stairs to an office. I remember of sitting-down to a desk and I did the writing at the dictation of Mr. Flint. I suggested certain changes that we wanted in the bill of sale. The minor ones he permitted me to make. He allowed me to put in Mr. Shaw's name with Mr. Neal’s as one of the grantees, and he also allowed me to recite in the bill of sale a consideration, which was not in the paper which he had written without a blank and given to Mr. Neal. I called his attention after we had got those points adjusted, to the fact that the description was not very specific. I suggested that it was only very general, and he shook his head at once and said he couldn’t make any changes of that kind. He said something to this effect —I don’t remember the exact words, but to this effect, that, 'No,’ he says, 'I can’t put in any names or any articles.’ He says, 'Mr. Neal knows more about that than I do.’ And Mr. Neal spoke up at that point and says, 'Yes, Mr, Flint, I know what I put in there,’ and Mr. Flint answered and says, 'Whatever you put in there last, fall is there now.’ • And he simply refused to make any further additions to the bill of sale. I think he did allow me to put in the covenant which the blank called for of his title to it by the quitclaim, saying, I think he used the remark that he would not make any warranty deed of anything. I think he used that remark, and I remember also my calling his attention to the fact that this description was somewhat uncertain as it read in his bill of sale. He says, 'Everything will be all right.’ I says,' Yes, Mr. Flint, so long as you are alive I have no doubt but what you wall cany out your agreement with Mr. Neal; I have no doubt any agreement you have made with Mr. Neal will be carried out, but,’ says I, 'life is uncertain, and perhaps if it should pass into other hands, it might not be carried out as you and Mr. Neal have agreed.’ I pressed the matter as much as I thought was becoming and he refused to make any changes and it was dropped at that point. I think I interlined in the original bill of sale — if I remember right I made one bill of sale, which has been shown here, and took Mr. Flint’s original writing which he gave to Mr. Neal and made such interlineations ás he permitted me to make. That is about all I can remember of the matter.” The counsel for the defendant requested the following instruction : "If Mr. Neal, or Mr. Wood oh Mr. Neal’s behalf, requested Mr. Flint to specify in writing an agreement as to the quantity of the articles, and Mr. Flint refused to do so and expressly stated that he would not warrant anything, and Neal closed the trade and accepted the bill of sale as written with that statement of Flint’s, then Neal is thereby estopped from afterwards setting up any previous verbal warranty as to the quantity.” The presiding justice thereupon said : "Gentlemen, I give you that instruction, but I also say to you that the element in it which is controlling is whether or not the plaintiff accepted it in full satisfaction and compliance with his bargain.” The jury decided the issue in favor of the plaintiffs and assessed damages in the sum of one hundred and forty-two dollars and seventy-eight cents. To the admission of the foregoing testimony and instruction given to the jury, the defendant took exception's. The issue, aso submitted to the jury, by the presiding justice appears in the following portions of his charge : "I now refer to the interview when the bargain is said to have been struck. The question for you is to determine what that bargain was. There was a bargain of sale at that interview; there was no sale, because the sale was not completed until later ; but it is admitted by both sides that a bargain for sale was made. 'A bargain was sti'uck,’ in the language of the counsel for the plaintiff. . Now, what was that bargain ? The plaintiff, Neal, says that he had taken an account of what boats were there at Winter Harbor in a certain store house, or a storing place, that he had a list of them, and that he Vent to Mr. Flint to purchase them. He says that Mr. Flint wanted a proposition from him to purchase all the property that he had acquired under his mortgage, or to purchase only that which was stored therein the fall. That is what Mr. Neal says. He states that he offered to give the defendant, for all the property to which he took title under the Pendleton mortgage, the sum of $2800, and to give him $2500 for all that he had stored in the fall, and that Mr. Flint agreed to sell him all that were stored in the fall for $2500. .... "Now, gentlemen, when two parties make a verbal agreement or trade that is to be reduced to writing, and the writing is afterwards made, that writing is conclusive of the transaction and binding upon the parties, and they must be forever estopped and held by its terms and conditions. That rule applies in this case so far as that writing does cover the whole contemplated contract between the parties..... "So, gentlemen, determine, in the first place, what the trade was. You will determine whether the parties committed to paper the whole transaction, whether they substituted the written instrument for all the bargain they had previously made. If they did, the plaintiff cannot prevail. If they did not, and the bargain was to sell all that lay at Winter Harbor, and the defendant had distinct,1}' agreed with the plaintiffs to sell them all that was at Winter Harbor, representing that at that time all the boats were there that were at Winter Harbor, guaranteeing them to be there, then the plaintiffs can recover. But I am bound to. say to you that it is not necessary in order to hold a man by warranty for him to say, 'I warrant.’ If I convey an article to you by a representation as to quality concerning which you have had no opportunity to discover, and my representation to you is of that character which leads you to believe it and to rely upon it as containing that quality, and you purchase, why then, gentlemen, the jury would have a right to say that I meant to warrant, and actually did warrant the article. . . . "Well, gentlemen, when that last bill of sale was given, the defendant’s attention was called to the imperfect description of these articles, and he was asked to add a list which would operate to convey those articles to -the plaintiffs and he declined to do so. Now, what is the significance of that to your minds? If he had made his contract before to give a writing of that sort you will consider whether when the first writing was accepted add he was asked to put in .a second writing and refused to do it, the plaintiff Neal went away submitting to that agreement, ’agreeing to take his rights under that bill of sale ; or whether he went away without agreeing to it and without submitting to it, having done all that he could to get in all that the man had agreed to sell and had determined to enforce his contract against Mr. Flint and to have the property that wras contained on his list.” The previous conversations having been reduced to a written contract, that contract in the absence of fraud is the best proof of their agreement, and it cannot be varied or contradicted by parol evidence. Bell v. Woodman, 60 Maine, 467. The parties having reduced their contract to writing, their rights must be governed by and depend upon its terms as therein expressed, irrespective of any parol evidence of what was intended or what took place previous to or at the time of the making of the contract. Grant v. Frost, 80 Maine, 204. The parties to a written contract have made it the authentic memorial of their agreement and for them it speaks the whole truth upon the subject matter. McMaster v. Ins. Company, 55 N. Y. 234. That a contemporaneous agreement of warranty cannot be engrafted by oral evidence on a written instrument is well settled in Massachusetts. Boardman v. Spooner, 13 Allen, 361. In Frost v. Blanchard, 97 Mass. 157, the defendants sought to prove by parol a warranty of quantity in relation to goods conveyed by writing signed by both parties making no mention of warranty. The court say: "A previous or contemporaneous warranty cannot be engrafted by parol evidence upon a written contract. In our opinion the agreement merged all antecedent negotiations and stipulations, whether oral or written, and must be taken to be the complete expression of the entire bargain with each other, by which alone their rights and liabilities are to be determined.” Counsel also cited : Keller v. Webb, 126 Mass. 394 ; Howe v. Walker, 4 Gray, 318 ; Dutton v. Gerrish, 9 Cush. 89 ; Libby v. Dickey, 85 Maine, 367 ; Stubbs v. Pratt, Id. 429. Writing is not a bill of parcels as in Hazard v. Loring, 10 Cush. 268 ; and Dunham v. Barnes, 9 Allen, 354.