
    Strader vs Lambeth, &c.
    Error to the Jefferson Circuit,
    Assümísit,
    
      Case 144.
    Parol evidence is inadmissible to vaiy the terms of a written contract, unless there be fraud, mistake or usury; but when the parties admit that tile contract was . otherwise than as appears by the writing, this rule has no application. Nor does the rule apply to strangers 1o the writing.— U Qreenleaf337; ^Starkie, 575.)
    
      
      Evidence. Partnership. Steamboats.
    
    
      September 28.
   Judge Simpson

delivered the opinion of the Court.

The decision of the Court below, that the bill of sale from Reeder, made defendant, Strader, legal part owner of the boat Houma, and parol evidence was inadmissible io show that the bill of sale although absolute on its face, created in reality only a trust, to which effect the Court instructed the jury, we deem erroneous. Between the parlies to the instrument, such evidence, it is true, is only admissible, when the party offering it, first shows that the writing, either by fraud or mistake, was drawn differently from what the parties intended, or was executed under circumstances tending to prove that the contract was usurious. But when the parties themselves do not rely upon the writing as drawn, but admit the contract to be other than that which it exhibits, this rule has no application. Nor are strangers to the instrument concluded by its terms, or estopped to show by parol evidence, that the contract of the parties is different from what it purports to be on the face of the writing ; and as estoppals where they exist must be mutual, it follows that in a controversy with strangers to the instrument, the parties to it are not themselves estopped to explain or contradict it by parol evidence: (1 Greenleaf, 317; 2 Starkie, 575.)

A beneficial interest in a steam Boat, without holding the legal title, will render the peison holding such interest liable for services done or supplies furnished for the boat: (3 Kent's Com. 123; 16 East’s Rep. 174; Collyer on Part. 684)

As the liability of Strader depended on his being beneficially interested in the boat, or, on his having assumed ownership, or otherwise acted so as to have induced the plaintiff to give the credit on the faith of his responsibility, the exclusion of this evidence from the consideration of the jury, was evidently to the prejudice of the plaintiff' in error. The party who bolds the legal title is not made liable merely on that account, he may hold it merely in trust, and be neither actual or ostensible owner. His liability depends on his actual interest, or his agency in the control and management of the boat, and the character which he assumes before the public: (3 Kent’s Com. 133; 16 East. 174; Collyer on Partnership, 684.)

Had the evidence been sufficient to show that Strader was part owner of the steamboat at the lime the account to Lambeth & Thompson was created, and that the captain of the boat was placed under such circumstances as authorised him to bind the owners for necessary supplies and repairs, as what constituted necessaries for this purpose, was a question of fact proper alone for the jury to decide, the Instruction to the jury that they might find that certain enumerated items in the account were for necessaries, if it be understood as a decision by the Court on Ibis point, was improper. But the Court probably intended to inform the jury that the excluded items in the account couid not be deemed necessaries, and as to the others, the jury had to determine from the evidence whether they were for necessaries or not.

Marshall and Pirtle plaintiff:-Fry fy Page for def’ts.

Tt is contended, however, on the part of Lambeth & Thompson, that the Court erred in setting aside the first verdict and granting a new trial, that the verdict ought to stand, and a judgment be rendered thereon. We are however of opinion, the first verdict was unauthorized by the evidence. It was for an amount exceeding that which would be considered under any view of the evidence, as due on account of necessary expenditures. Besides, the law of the case was not fully presented to the jury in relation to the power of the captain of the boat to bind the owners, when he was in a situation to communicate with them without inconvenience, or prejudice to their interests.

We think, therefore, that the Court was right in setting aside the first verdict and granting a new trial. But for the error committed on the last trial, as before stated, the judgment must be reversed, and cause remanded for a new trial and further proceedings in conformity with this opinion.  