Spiers v. Clay's administrators 4 Hawks 22, 11 N.C. 22

Spiers v. Clay’s administrators.

From Hertford.

Parol evidence shall not be received to contradict an acknowledgment in a deed of the payment of the purchase money.

J\ssumpsit on the express promise of defendant’s intestate. The facts were, that the plaintiff, on the 28th of August, 1822, had executed a writing in the following words :

August 28, 1822. — Received of James Clay four hundred arid fifty dollars, in full payment for two negroes, - and Dave her son, for which negroes, I do warrant and forever defend the right and title of said negroes, against all claim or claims whatsoever: and likewise do warrant them to be sound and healthy. Where unto I put my hand and seal.

(Signed) Thomas Spiers. [L. S.]

Witness, G. M. Smith-

Afterwards, the plaintiff and Clay being together, Clay called on a witness and informed him that he wished him to take notice, that the writing above was given under the following conditions, to wit. That Clay had loaned to the plaintiff glOO, and that Clay was about to go to Virginia; if on his return, plaintiff should pay the $100, then plaintiff should retain the slaves named in the foregoing writing; but if he did not pay the $100, then Clay was to pay plaintiff $350 in addition to the $100, and keep the slaves. Clay went to Virginia, leaving the slaves, aud shortly thereafter died without returning; his administrator took possession of the negroes; and this action was brought for the $350, on the express promise of Clay.

The presiding Judge, Dantee, charged the jury, that the bill of sale under seal acknowledged the receipt of the purchase money of the slaves, and no parol evidence could be received to contradict it; that the parol evidence had been permitted to enable the plaintiff to show that the deed, or bill of sale, had been fraudulently obtained, arid *23iF the parties understood what they were about when the writing was executed, and there was no actual fraud, o then the acknowledgment of the payment of the purchase money could not be contradicted by parol evidence. jury found for defendant, plaintiff moved for a new trial, which was refused, and from the judgment rendered, he appealed to this Court.

L. Martin, for appellant. —

The plaintiff having give» his receipt for the consideration money under his hand and seal, the question is, whether a subsequent promise to pay it is a nude pact; or to state it in other words, can the payment of the consideration be inquired into by pa-rol testimony?

That the terms of a contract committed to writing, whether under seal or not, cannot be added to, varied, or contradicted, by pai’bl evidence, I admit to be clear at common law before the statute of frauds was passed: and this contract being for a slave, had not there been a memorandum in writing the contract could not have been-enforced. But what part of this transaction is it, that we call the contract? Is it not the agreement in writing between the parties to transfer the title to the slaves for §•>450? Can it be considered any part of the contract, in this sense, whether the consideration was paid down or is to be paid hereafter on eertain conditions? Does it vary, add to or contradict any part of the instrument, tech--nically called the contract, when parol evidence is permitted on inquiries into the consideration, whether paid or not? It has been adjudged that the consideration mem tioned in deeds may be inquired into on parol evidence, by very high authority. In the case of the King v. the Inhabitants of Scammoden, (3 Term R. 474.) L. Kenyon, in giving the opinion of the Court, said, “ It is clear that the party might prove other considerations than those expressed in the deed. It is permitted in all cases of covenants to stand seized to uses.” And his lordship refers to *24the case of Filmer v. Golt, (7 Brown’s C. Cas. 70.) which was an appeal to the House of Lords, as satisfactory au-t . _ . -thority to support him.

Ami there are sundry cases decided in New-York, that support the position that I contend for in this case. In 14 Johns. R. 210. the case of Shepherd v. Little is in point. In that case the plaintiff had sold the defendant a lease, in the conveyance of which he acknowledged, under his hand and seal, that he had received the sum of *§500 «in hand paid.” The recovery was resisted on the same ground it is in this case; but the Court decided that the plaintiff might introduce the evidence. And in the case of Kip v. Dennison, (4 Johns. R. 23.) the Court held, that where two trustees had executed a conveyance of land, in which was contained a joint acknowledgment of the receipt of the consideration money, that it was competent for one of the trustees to show that the whole of the money went into the hands of the other, and thus exonerate himself from liability.

We do not, in this case, attempt to contradict or vary or alter the contract, that is, that the plaintiff sold the slaves to the defendant for S450; but we affirm this, and only offer to prove another instrument, not varient from it, relative to the consideration.

I have not been able to find any cases analogous to this; but I have found divers cases where a recovery on an express assumpsit has been effected, where the remedy has been suspended by statute, and where it lias been suspended by stubborn rules of law.

Freeman v. Fenton, (Cowp. R. 544.) is a case where the remedy was suspended by statute. A bankrupt gave .his note fur a debt due the plaintiff before his bankruptcy, •promising to pay, and although the recovery was resisted, it was enforced.

Andwyhere a debt is barred by the bankrupt’s.certificate, if he afterwards promise to pay it, it shall bind him; and it is sufficient in such case to declare on the original *25consideration. 1 Chit. Plead. 40. Besford v. Sanders, 2II. Bla. R. 116.

And in the case of insolvent debtors discharged, or debtors discharged under the Lords’ act, their bodies not hable to be taken in execution: but if, in cither of these cases, the debtor after his discharge promise to pay the debt, he may be sued, or taken in execution upon such new contract, as in case of a brankrupt. 1 Chit. Plead. 42.

And the cases arising under the statute of limitations are familiar. Even the acknowledging the existence of the debt will revive the remedy under this statute.

The case of Brockett v. Foscue, (1 Hawks 64.) dont conflict with the principle I contend lor. In that case, there was no express promise to pay the money: the case shows it was on an implied assumpsit. I think it was strange, after the plaintiff had released his debt, by which the defendant was discharged by an inflexible rule of law, that lie should then contend to recover by an assumpsit that could only arise by implication of law.

But suppose this case comes so clearly within the principle of the case of Brockett v. Foscue, that the release may be conclusive evidence on the plea of the general issue, against the assumpsit for the balance of the price of the slaves; may not the plaintiff still recover on the ground of the new promise made afterward? and may not the having given the release without receiving the consideration money, be a sufficient consideration to support the promise?

Between partners, who have by deed covenanted to account with each other, and pay over what shall appear to be due, if they state an account and one expressly pro, mise to pay the balance, assumpsit may be supported notwithstanding the deed. 1 Chit. 96. See also a note to 3 Bos. Sf Pul. 249.

Hawks, for appellee, —

referred to Brockett v. Foscue, (1 Hawks R. 64.) and was about to examine how far a consideration was made out for defendant’s promise, when ’ *26he was informed by Judge Henderson that it was unnecessary.