JULY 1830.

Rhodes

ν.

Sneed.

firm, and that the plaintiff only contracted with a view to the sufficiency and personal liability of Barringer, that then the plaintiff could not recover in this action. As to Barringer & the first, second and third points, the Court charged the jury, that as the contract sued on was not under seal, it was competent for the defendant to prove a subsequent contract by parol, or a modification of the first, and that if such modification contained a condition precedent, binding the plaintiff to reach Mobile within eleven days, or any other specified time, the plaintiff could not recover, unless he proved a performance of such condition on his part. And if the contract was entirely new and intended to rescind the first, that it should have been sued on. As to the fourth point, the Court charged the jury, that the plaintiff's rights accrued under said contract, according to its legal effect, in connexion with the other facts of the case; and that although but one of the partners was named in the contract, yet if it was in relation to partnership matters, and the other partner assented to it afterwards, he was bound. These several decisions were excepted to by the defendants, and the jury having found a verdict against them, they now here assign these several matters

as error.

BARTON & STEWART, for the appellants, argued and cited the following authorities: 10 Johnson's Reports, 66. 3 Ibidem, 436. 15 Ibidem, 424. 3 Espinasse's Cases, 108. Marshall, 189.

ELLIS, argued for the appellee, and referred to Espinasse's Nisi Prius, 783. 7 Term Reports, 266. 1 Johnson's Cases, 230. 4 Johnson, 267. 11 Massachusetts Reports, 311. Gow on Partnerships, 255, 29. 3 Starkie's Evidence, 1096, 995, 1002, 1007. 11 Johnson, 201, 1 Peters.

By JUDGE LIPSCOMB. In this case a great many points have been made by the counsel for the plaintiffs in error. We shall however dispose of those we consider material, without examining those of minor importance. The first objection taken to the record is, that it shews that the Court below admitted secondary evidence to prove a written contract. The bill of exceptions in the case does not assume to set out the whole of the testimony, but it shews that on its being proven that the original contract

between the parties was lost, the Court permitted a paper.

JULY 1830. that a witness swore was a true copy of the original, to be Barringer & read in evidence. It is objected, that as there was a sub

Rhodes

seribing witness to the original contract, he should have been produced; it was proven that the subscribing witness was the son of the plaintiff below, and lived in the State of Tennessee. The rule of evidence was formerly very strict, as to the admissibility of any secondary proof of an instrument of writing. In the English Courts, for a great length of time, the rule was considered as well settled, that the evidence of the subscribing witness must be produced, if he was living; so that to let in proof of a written contract in any other way, it had first to be proven that the subscribing witness was dead, or circumstances from which his death would be inferred; in such case, proof of the hand writing was resorted to as the next best evidence. But in later times, the hardship and oppression of this rule has been so obvious, as to produce a great relaxation of its rigour; this too has been effected without violating any acknowledged principle of the law of evidence, the rule still prevailing in all its active influence, that the best testimony, which the nature of the case will admit of, must be produced. The rule now is, that if the subscribing witness is beyond the jurisdiction of the Court, so far as his testimony is concerned, he may be treated as though he were dead. The reasonableness of this rule is so clear, it is a matter of surprise that its correctness should ever have been questioned. For why should a party be deprived of his rights for the want of the testimony of a witness. When the forum afforded him no means of commanding such tesimony, and while there were other means of proving the same facts as fully and satisfactorily to the mind, as if the subscribing witness himself were present and occupied the stand. In the argument it was urged that it did not appear that the original was proven. It is true that the mode in which it was proven is not shewn by the bill of exceptions, but it is shewn that there was proof of the loss of the original, and proof that the paper offered was a copy. Now in favor of the judgment, we must presume that the two substantive facts of the loss of the original, and the faithfulness of the copy were proven according to the acknowledged rules of evidence. The inability to procure the evidence of the subscribing witness, although it would much enhance the difficulty of proving a written contract, after the original has been lost, would

Rhodes

certainly not preclude a resort to other modes of proof; JULY 1830. and a sworn copy of the original, would be that kind of secondary evidence, which would be most favorably re- Barringer & ceived, especially when we are bound to infer that the witness swearing to the copy, had adequate means of knowing the truth of the fact to which he testified. On this point then we conceive there is no error.

It is further assigned for error that the Court refused to permit the defendants below, to prove by oral testimony, that the boat of the plaintiff was by agreement, to be at Mobile in eleven days. By referring to the written contract on which the action was brought, it is very obvious that the testimony attempted to be introduced by the defendant below, would have materially affected the terms in it expressed. How far oral testimony can be admitted to vary the terms of a written contract, is a subject on which the adjudications have not been uniform in the United States. For the reason that there is no Court of Chancery in some of the States; and in such States, a disposition has been cherished, until it has grown into a rule of practice, to admit any testimony that would be a ground of relief in a Court of equity. But in England and most of the States of this union, the current of judicial decisions has been uniform and uninterrupted, and the rule that oral testimony shall not be received, to alter or control the terms of a written contract, has been fully acknowledged. It is true this rule admits of some exceptions, without disturbing its generality; a contract in writing may be subsequently modified by a parol agreement. This could be done without infringing the rule. The written contract would be left inviolate, as expressing the true meaning and intention of the parties at the time it was entered into. In like manner if terms of a dubious or uncertain import have been employed in the written contract, parol evidence has been received to interpret the meaning of such terms.

In some cases too, if a fraud has been practiced by one of the parties, in not writing or reading the contract faithfully, or by promising to make alterations, and failing to do so, Courts of law have sometimes received parol evidence of such facts; but it is not usual in such cases to resort to a Court of Chancery for relief, if such a Court is accessible to the party aggrieved. Customs incidental to a particular class of contracts, have been permitted to be proven by parol, for the purpose of influencing the writ

v. Sneed.

a

JULY 1830,

Rhodes

v.

Sneed.

ten contract. The case in first Peters, is to be referred to this class of cases. None of the exceptions we have Barringer & noticed can be brought to aid the attempt to produce parol testimony to vary the contract under consideration. There are no doubtful or ambiguous terms employed; there is 1 Peters no imputation of fraud or mistake, and there was no atPage 92. tempt at proving any custom that would impose its incidents on this contract. But it might well be doubted if the written contract had embraced the condition offered to be proven by parol, that is, that the boat was to be at Mobile in eleven days, if it would not have been an independent one, for which the party aggrieved would be left to his separate action.

The only remaining point to be considered, is the correctness of admitting the declarations of Barringer to be given in evidence, to prove that Khodes was a copartner, after the copartnership, if any had existed, had been dissolved. It was formerly held that an acknowledgment of one of the firm, after the firm was dissolved, could take a case out of the statute of limitations and revive the debt against all the members thereof, but the true doctrine is now held to be, that such subsequent promise will only bind the person making it. When the former rule prevailed, and when a strong disposition was manifested by the Courts, to extend the influence of the acts of one of the members of a firm, after its dissolution, to every transaction in which the firm during its existence had been engaged, no adjudication even then, went so far as to authorize one of the members, after the firm had been dissolved, to create for the other members a new liability. More enlightened views now prevail, and rules more consonant with reason, have by a variety of decisions, regulating and diffusing the respective liability of the members of a firm after its dissolution, been established. In the case under consideration, if the declarations of Barringer after the dissolution of the supposed firm of Barringer & Rhodes could be admitted, to prove the fact of the former existence of such a firm, it would hold out to Barringer the powerful consideration of his own interest, to mould those declarations regardless of truth, so as to make Rhodes a joint debtor with himself. If he could by his own declarations, prove that at the time he entered into the contract with Snced, Rhodes was his partner and jointly interested in the contract, he would thereby divide the responsibility he had incurred. But independent of the objec

JULY 1830.

tion to Barringer's declarations in this case on the score of interest, we take it to be the well settled rule at present, that the declarations of a partner after the dissolution of Barringer & the firm, can only bind himself. For the admission of this testimony, the judgment must be reversed and the cause remanded.

Reversed and remanded.

JUDGE WHITE, having presided below, and JUDGE COLLIER having been of counsel, did not sit.

Rhodes

v. Sneed.

MEREDITH V. NAISH.

1. Payment of part of the purchase money is not of itself a sufficient part performance, to enable the vendor to enforce a parol contract for the sale of lauds, and recover at law the remainder of the purchase money. 2. But where such circumstances are accompanied with the delivery of possession to the vendee, Chancery could enforce a specific performance, and therefore assumpsit will lie for the balance of the purchase money.

THIS was an action of assumpsit, tried in the County Court of Shelby county, at August term, 1828. The action was brought by A. Naish against D. Meredith, to recover $200, as a balance of purchase money due by Meredith on a purchase of land. The first count of the declaration charged that the plaintiff Naish, was in August, 1826, lawtully possessed of a certain section of land, &c.; that the defendant bargained with him for the purchase of said land for the sum of $1000; that the defendant executed his notes for $800, and agreed to pay the plaintiff the remaining $200, on condition that the plaintiff would make a title in fee simple to the defendant, within a convenient time, to a particular half quarter of said section of land; that in consideration thereof, and that the plaintiff had undertaken at the special instance and request of the defendant, to make title to said part of said land, and to perform on his part the conditions of the sale; that the defendant did undertake and promise to pay the plaintiff the said sum of $200, and perform all the other conditions of the purchase on his part; that the defendant in part performance of his said contract, did duly pay the

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