Osborn v. Hendrickson

Burnett, J., delivered the opinion of the Court—Murray, C. J., concurred.

The only question is whether this testimony is in violation of the rule which will not permit of parol testimony to contradict or vary the terms of a written contract. The testimony of Cohen agreed with the written instruments, that the whole consideration paid by Cohen was one thousand nine hundred dollars, and according to his statement the rent was in fact intended to be included with the house and the judgment; while there was some other testimony tending to show that the real understanding between the parties did not embrace the two months’ rent. The decision of the Court below is substantially based upon two grounds : First, that parol testimony may be received to prove that the consideration mentioned in a deed is not the true consideration given by the purchaser; second, that in this ease Cohen acted in fact as the agent of defendant, and paid the one thousand nine hundred dollars for the house, the judgment and the rents—that while it was necessary to have a written assignment of the judgment, and a bill of sale for the house, it was not requisite that payment of the rent should be evidenced by writing, and that parol testimony could be received to show that the nine hundred dollars, stated in the written assignment as being paid for the judgment, was in fact paid both for the judgment and the rent.

It would seem clear, upon principle, that this case must be determined as if the question was between plaintiff and Cohen. The defendant permitted Cohen to act in his own name, and to hold himself out to plaintiff in a false character, and having enjoyed the supposed advantage of this conduct, he is estopped to deny the character assumed by Cohen. Suppose, then, the qrrestion to have arisen between Cohen and plaintiff, as to whether plaintiff had assigned his claim for the two months’ rent under the written contract, would it then be competent for Cohen to enlarge the written articles so as to include claims not therein mentioned ? And suppose a deed to state that for a given sum a party sells to another a certain tract of land, describing it, could the vendee show, by parol proof, that the contract embraced another tract of land not described ? I apprehend not. The present ease does not relate to the amount of the consideration paid, as that was admitted to be truly stated; but the question regards the property purchased by Cohen. What property did Cohen purchase with the one thousand nine hundred dollars ? The writings say so much, and the parol testimony states it was that much and more. Is not this clearly varying the terms of a written contract ? A bill of sale for one piece of property might be made to include any number by parol testimony, if such a rule could be tolerated.

As a now trial must result in no good, under our view of the