Opinion
1814.
A court can not change the expression of a contract, but must take it altogether, and discover the meaning of the parties therefrom; nor can any parol substitute be allowed.
A plea, therefore, that after a contract had been reduced to writing, another was substituted in its place, or a different mode of payment had been agreed upon, is bad.
It is otherwise with a plea of accord and satisfatcion, when a contract has been actually satisfied in a different manner from that originally contemplated.
A contract to pay a certain sum of money which may be discharged in tobacco and hemp, means an equal quantity of each, and a plea of tender of one of these articles alone is not good.
This was an action of covenant brought by the appellee against the appellant, in the Circuit Court of Williamson County, upon the following obligation: —
"On the 6th day of May, 1812, I promise to pay Samuel Jackson, or his order, seven hundred and thirteen dollars and three cents, with interest from the date, for value received, which may be discharged in tobacco, at three dollars and fifty cents per hundred weight, delivered at Nashville, and hemp at the Nashville price. Witness my hand and seal this 1st December, 1809.
John Bond." [Seal.]
The declaration averred a breach of the covenant in not having delivered tobacco and hemp according to the agreement.
The appellant appeared in defence of the action, and pleaded,
1. That as to thirteen dollars and fifty-four cents, part of said sum of seven hundred and thirteen dollars and three cents, he had paid that much on the first day of May, 1812.
2. That he on the 6th day of May, 1812, offered to deliver to the said Jackson good tobacco to the amount of the residue of said seven hundred and thirteen dollars and three cents, at three dollars and fifty cents per hundred weight, in discharge of said residue, at Nashville; and that the said Jackson then and there refused to receive the said tobacco of said John, c.
3. That he, on the 6th day of May, 1812, at Nashville, offered to deliver to the said Jackson good tobacco at three dollars and fifty cents per hundred weight, and hemp at the Nashville price; but that the said Jackson refused then and there to receive the same, c.
4. That before the sixth day of May, 1812, viz, on the 15th day of April, 1812, it was agreed between the said John and the said Jackson, that the said Jackson would receive good tobacco at three dollars and fifty cents per hundred weight, in discharge of the said seven hundred and thirteen dollars and three cents, c. at Nashville, on the 6th of May, 1812; and that on the said 6th day of May, 1812, the said John, at Nashville, offered to deliver to said Jackson good tobacco at three dollars and fifty cents per hundred weight, in discharge of the said sum of seven hundred and thirteen dollars and three cents; but the said Jackson refused to receive the same, c.
To the first and third pleas Jackson replied, and issues were thereupon formed to the country, but to the second and fourth pleas he filed a general demurrer.
On the trial of the cause in the Circuit Court the demurrers were sustained. Bond, then, under the issue formed by the third plea, offered evidence of a tender in tobacco; but the Court refused to receive the evidence and exception was taken.
A verdict and judgment having passed against Bond, he appealed to this Court.
Whiteside, for the appellant, contended that, from a fair and rational construction of the covenant, it must be inferred that the appellant was authorized to discharge it in either hemp or tobacco; and that the word and, from the manner in which it was used, imposed upon him no other nor further obligation than if the word or had been inserted. Viewing that as the proper construction of the covenant, the Circuit Court erred, both in sustaining the demurrer to the second plea, and in the opinion contained in the bill of exception.
But the strong point in this cause is that the Circuit Court improperly sustained the demurrer to the fourth plea. Whatever may be the proper construction of the words used in the covenant, it was certainly competent for the parties to modify it, or render it certain, by a subsequent agreement. Admitting Bond liable to pay both in tobacco and hemp, still Jackson might, if he chose, waive a compliance, and agree that the contract might be discharged in either of the articles. Jackson, by his agreement to take tobacco, was himself the cause that the covenant was not discharged according to its legal effect; and this Court ought to presume that if no such agreement had been entered into, there would have been no breach on the part of Bond. After Jackson has thus prevented, by his own act, a compliance, no principle of either law or justice will authorize him to recover. 1 Johns. C. E. 22; 3 Johns. Rep. 5.
Dickinson and Cooke, for the appellee, argued that, upon the first point, there could be no doubt but that the Circuit Court had decided properly. Here is a covenant to pay a certain sum of money in hemp and tobacco. As the proportion which is to be paid of either article is not mentioned, a fair construction would be to compel an equal payment in each. This would be a much more equitable contract than the one alleged on the other side. In this case the price of tobacco is fixed; but the hemp is to be at the market price. If we suppose that Bond had a right to discharge the covenant in either of these articles, the consequence would be that if the market price of tobacco should be less than that stipulated, he would pay in that article, but if it should be greater he would pay in hemp. It is true the parties were competent to make such an unequal agreement; but this Court ought not to force it upon Jackson by altering the agreement as reduced to writing and signed by the parties. No ambiguity exists.
The fourth plea is clearly bad. This is an agreement by deed; and by no principle of law are the Court authorized to permit the obligor to plead a verbal agreement, varying the contract as specified by the deed. 1 Dyer 51, a. Besides there is no mutuality in the agreement as pleaded. If Bond had not thought proper to deliver the tobacco, Jackson could have had no remedy upon the verbal undertaking; he would still have been compelled to resort to the deed. It follows, therefore, that both the agreement by Jackson to receive tobacco, and the agreement by Bond to pay tobacco, were without any consideration; and neither of them can be enforced.
On the part of the appellant it has been insisted,
1. That the expressions "hemp and tobacco" should be construed as "hemp or tobacco," and then a tender in tobacco would be good.
2dly. As the quantity of each was not determined by the contract, it was competent for the parties to fix the quantity of each kind before the day of payment. If they were competent to designate the proportion of each article to be paid, they were equally able to determine by agreement, that the whole should be paid in tobacco; and for the support of these propositions 3 Johns. 5; 1 Johns. 22, were relied on.
It was contended that if such a contract was good after being executed, it would be equally so where a party had done all he could to carry it into execution.
The Court can not change the expression of contracts. A contract must be taken altogether, and as in any other case, it must discover the meaning of the parties. It is true the word and has sometimes been construed as or, so as to effectuate the intention as clearly ascertained from the whole instrument. 1 Call, 212; Maryl. Rep. 202; 6 Johns. 54. In this case, however, there is no possible ground on which to erect a supposition leading to such a construction. The contract might materially be affected by it. It is agreed that the tobacco shall be at three dollars and fifty cents per hundred. Suppose hemp has risen in value, and tobacco fallen to little or nothing? Tobacco would of course be paid according to the construction contended for. One of three principles must be adopted: an election with the obligor, — with the obligee; or neither, and that an equal quantity of each was intended. The Court thinks the last most reasonable.
The fourth plea seeks to change the terms of a written contract by parol testimony. This can not be done; it would materially derange the order of society if it were the case. The rights of men would be placed on too slippery a foundation; a contract for land or negroes might, upon seeking to enforce, it, turn out in proof to be one for cattle. But when a contract has been actually satisfied in a different manner from that originally contemplated, an entirely different view presents itself. The danger of perjury if not removed, is so diminished as scarcely to furnish a ground of apprehension. The law has, with justice and wisdom, permitted this satisfaction to be pleaded and shown in proof, whereby the obligation of such a contract ceases. There is however, no such plea in this case as accord and satisfaction nor any ground or reason to support such a one.
Let the judgment be affirmed.