Opinion
June Term, 1853
H.P. Hunt, for appellant.
N. Hill, Jr., for respondent.
The receipt was properly received in evidence. Wilgus, who drew it, and Haviland, who executed it, were both agents of the defendant. They are proved to be such by the testimony of Wilgus himself. The receipt was important to show a delivery, if for no other purpose.
The receipt did not contain any contract, unless one is to be inferred from the delivery of the goods, marked for Chicago. If this is equivalent to the engagement to transport them to the place of designation, the contract as claimed by the plaintiff is established. If, however, the instrument was merely an acknowledgement of the receipt of the goods distinguished by a particular direction, which is the plaintiff's construction, then there was no written engagement to transport the goods to any place, and it was competent and proper that the agreement should be shown by parol. This will dispose of the first two exceptions taken by the defendant, and in effect of the third and fourth also.
It is immaterial whether the judge decided correctly or not in overruling the motion for a nonsuit at the time when it was made. The subsequent testimony by Wilgus, removes all difficulty as to the agency of those who received the merchandise and contracted with the plaintiff; and the case was therefore properly left to the jury.
The fifth exception, I think, ought not to prevail. The goods shipped had found their way back to New York in the spring of the following year in a damaged condition. McCotter, a witness, in company with the plaintiff, saw them at the warehouse, and subsequently informed the agent of the defendant of their condition. In the course of the conversation, and as a part of it, the witness spoke of the arrangement of the previous fall, made in his presence with the same agent for their shipment. The reply of the agent, which went to account for the delay and the condition of the goods, and their being found in New York instead of Chicago, their place of destination, was objected to by the defendant, and the exception to the ruling of the court constitutes the fifth exception. I think that the declaration of the agent in relation to property entrusted to him in the usual course of business, as to the reasons of the delay in the transportation, and even as to the contract made with him in reference to the carriage, admissible, as a part of the res gestæ of the particular agency. The principal resided at Troy; the agent in New York, for the receipt and shipment of goods, with authority to contract, must necessarily have the right to answer questions as to all matters fairly within the scope of the power exercised by him in the ordinary routine of the duties devolved upon him by his principal. The objection in this instance was general and would prohibit, if it prevailed, the agent for assigning any reason or excuse for the non shipment of goods for six months, or from answering any inquiries upon the subject. The judge excluded certain evidence taken under the act of 1848, which is the subject of another exception. The trial was in 1850, when the law of 1848 had been repealed. As the common law recognizes no testimony except such as is delivered in open court, the defendant could not avail himself of these depositions unless he had acquired a vested interest in them, which placed them beyond the interference or control of the legislature. Where evidence arises from a contract incidentally, it can not be abrogated by a statute law, without impairing the contract, which is prohibited by the constitution of the United States. That legislation which regulates the manner in which the testimony of witnesses is to be taken and received, is a matter pertaining to the remedy in suits at law or in equity, over which the states have exclusive power, so far as it respects their own courts. In this case, although the examination was had and the testimony taken in pursuance of an existing law, yet the same statute directed and authorized the depositions to be read in open court, as evidence in the cause. By the repeal, this last provision was as though it had never existed, ( Dwarris on Stat. 676,) and the defendant consequently was thrown back upon his common law remedy of viva voce examination.
The repeal deprived the defendant of no right; it did not shut out the evidence by particular facts, but regulated the manner in which it should be given to the jury. In the case of Hitchcock v. Way, (6 Adolp. Ellis, 943,) when issue was joined, the defendant had a perfect defence, under an act avoiding the bill of exchange when given for a gaming transaction. It was held that this was not taken away by a subsequent statute in favor of bona fide holders. In other words it was held, and very properly, that a subsequent statute, even in England, should not be construed as creating a contract, where none existed at the commencement of the suit, or at the time when issue was joined between the parties. Such a law would, I apprehend, be unconstitutional with us.
But such was not the law of which the defendant complains: it touches no right: the same facts which exonerated him from liability to the plaintiff, would have the same effect under the acts of 1849 and 1850.
The judgment should be affirmed.
JEWETT, JOHNSON, TAGGART and MORSE, JJ., concurred with Judge Gardiner.
RUGGLES, Ch. J., gave no opinion.
MASON, J., did not hear the argument.
I. Assuming that the man with whom the plaintiff's agent dealt was authorized to bind the defendant, no such contract was made as is set forth in the complaint. It is not a case of a mere formal variance which might be overlooked, but is an entire failure of proof. The general rule is that when a written contract is made, all previous conversations are merged in the writing. When a receipt is in the nature of a contract it is within the general rule, and is not liable to be varied by parol evidence. ( Egleston v. Knickerbocker, 6 Barbour, 466; 2 C. H. notes, 1439; Howes v. Barker, 3 J.R. 509; 5 Cowen, 497; 5 Wend. 187; 14 Wend. 26.) When the cases speak of evidence being admissible to vary or explain a receipt, it is only intended that it is so with respect to the consideration; and with respect to that, the explanation which is admissible is such as is not contradictory to, but consistent with the instrument. ( McKinstry v. Pearsall, 3 J.R. 319; 6 Barbour, 463.) The receipt in this case contains no contract to deliver the goods at Chicago before the close of navigation that year, or at any time.
This is not a case where the contract can rest partly in writing and partly in parol, if there be any such case. See Howes v. Barker, 3 J.R. 509. There all the conversation between the parties preceded the giving of the receipt. They must be considered as merged in it.
But if the parol conversation can be added to the receipt, it falls short of making the contract declared on. The agent merely expressed an opinion, but made no agreement that the goods should be carried through to Chicago that fall. The agreement which the law would imply from the receipt is, that the goods should be carried through according to the usual course of transportation business, that is, as soon as they could be conveniently carried through. But the complaint does not count on such a contract, and it is immaterial to inquire whether it was broken or not.
I think the learned judge should have granted the nonsuit. There was no evidence tending to prove the contract set forth in the complaint.
II. If I am wrong here, I think the judgment should be reversed for refusing to allow the defendant's counsel to ask on the cross-examination, the plaintiffs' witness, whether he ever knew boats to leave Buffalo for Chicago or the upper lakes after the 18th of November in any year. The objection to it was, that the answer should be restricted to the year 1847, and so the court held and extended it. It forms the fourth exception in the case. The plaintiff had failed to prove the contract set forth in his complaint, and was obviously seeking to recover on some contract which the law would imply from the facts. The witness had resided in Buffalo one year and was engaged in the transportation business. It was important for the defendant to show, in this aspect of the case, the usual course of transportation on the canal and the lakes. The testimony had rendered it certain that this box could not be expected to arrive at Buffalo before the 19th of November. And if vessels never had been known to leave Buffalo for the upper lakes after the 18th of November, the law would not charge the defendant with any fault for not forwarding the box after that time. The testimony was clearly admissible, and highly important to the defendant.
If an express contract had been shown to forward the box that fall, I grant the evidence was immaterial, whether restricted to 1847 or not.
III. I am inclined to think that the testimony taken on the part of the defendant under §§ 353, 354, 355, 356 of the Code of 1848, ought to have been received, notwithstanding these sections had ceased to be in force when the cause was tried. The general rule as stated by Dwarris on Statutes, 676, and approved by Judge Cowen in Butler v. Palmer, 1 Hill, 333, is, that when an act of parliament is repealed, it must be considered, except as to these transactions, passed and closed, as if it never existed. ( Smith on Statutes, p. 880, § 759.) The examination of the defendant's witnesses had been closed while the act of 1848 was in force. The witnesses may be presumed to have gone beyond the jurisdiction of the court. At any rate, they were not present at the trial, and the defendant's counsel rested upon their evidence as taken in pursuance of law. The right to take the testimony in a particular way had been executed. The witnesses were liable to punishment for perjury, if their testimony was false. The defendant had complied with the law as it existed and had incurred expenses under it. Nothing remained executory or inchoate. The whole was complete.
If that testimony had been received by the jury, it furnished a perfect defence to the action. Prior to the act of April 17, 1823, ( L. 1823, p. 208, § 16, p. 215,) testimony in chancery was taken in secret before examiners, upon written interrogatories and cross interrogatories, and neither party was permitted to see the testimony until publication was passed. By the act last mentioned, the parties were allowed to be present and to cross-examine the witnesses. There was no saving clause in the act as to testimony previously taken, yet we know that in all cases where the testimony had already been taken according to the former practice, it was received and acted upon by the court.
I think the judgment should be reversed and a new trial ordered, with costs to abide the event.
Judgment affirmed.