
    John Hunt, Administrator, versus Barnabas Adams
    Oral testimony is not admissible to control the effect of a written contract
    The declaration in this case, which was in assumpsit, contained several counts, all of which,- as it appears from the report of Sedgwick, J., before whom the cause was tried upon the general issue at the last May term in this county, were intended to refer only to one demand, which was founded on the following circumstances: —
    
      Joseph Chaplin made his promissory note to the plaintiff’s intestate in the words and figures following: — “ Lee, July 23,1804. For value received, I promised to pay Isaac Bennett, five hundred and fifty dollars, lawful money of the United States, on the 25th day of December, in the year of our Lord 1807, with interest; pay to be made at Coxsackie. Witness my hand. Joseph Chaplin.” [ * 519 ] Underneath * which, on the same piece of paper, were written the following words, subscribed by the defendant: “ I acknowledge myself holden as surety for the payment of the demand of the above note Witness my hand. Barnabas Adams ”
    
      At the trial, the defendant offered to prove, by oral testimony, that at the time of the contract between Bennett and Chaplin, for which the above note was given, it was agreed by them that Chaplin should procure the defendant to underwrite the same and other notes, given at the same time and for the same consideration, in the manner and form above expressed ; which was done accordingly ; but that it was then agreed by the parties, that the defendant was to be liable only in the event of a final loss occasioned by the inability of Chaplin; and further, that that event had not occurred ; but that, on the contrary, Chaplin was, and ever since the making of the note had been, solvent; and that the payment of the note might be enforced against him.
    The evidence thus offered was rejected by the judge, who sat in the trial. If that rejection was right, the verdict, which was in favor of the plaintiff, was to stand, and judgment be rendered upon it; otherwise a new trial was to be granted.
    The action stood over to this term upon the foregoing report; and now
    
      Ashman and Dewey, for the defendant,
    contended that the evidence offered at the trial was improperly rejected.
    This testimony was intended to explain the meaning of the contract, and it was necessary to a proper understanding of it by the jury. It is not known that this question has ever been decided in this commonwealth; and unless there is some positive and explicit rule of law opposed to its admission, there exists no reason for its rejection. Juries are the legitimate judges of the effect and the weight of evidence ; and, in fact, the point in dispute in this case resolves itself into a question merely of the weight of evidence ; or, in other words, the jury ought to have an opportunity to decide whether the terms of the contract, as * reduced to [ * 520 ] writing, or as orally agreed by the parties at the time of the transaction, shall govern.
    To every contract the consent of two minds at least is necessary , and it is only on the evidence of such consent, that the law enforces the observance of a contract, or punishes the breach of it. In the present case, it is very plain that, if the evidence offered at the trial had been given to the jury, and believed by them, they would have found a contract, as understood and assented to by the parties, essentially different from that which they had before them.
    By the contract, as understood by the parties, and as was offered to be proved, before the defendant was to be liable, an act was first to be done by the plaintiff. He was to apply to Chaplin, and to endeavor to obtain payment from him ; and if such endeavors should finally prove fruitless, his claim upon the defendant would then come into operation, and not before. This the plaintiff has not done; and, of consequence, if the intention and understanding of the parties are to govern the contract, he has yet no demand on the defendant.
    In the case of Thresh vs. Rake, 
       which was upon a written contract, Lord Kenyon admitted parole evidence that the time fixed by the contract for performance was enlarged by a posterior consent of the parties. And no reason is apparent, why parole evidence of a condition precedent, stipulated by the parties, is not equally admissible.
    
      Sedgwick for the plaintiff.
    
      
       1 Esp. Rep. 53.
    
   The action being continued nisi, the opinion of the Court was delivered at the following March term in Suffolk, by

Sewall, J.

(after stating the substance of the judge’s report of the trial.) The decision by this Court, in a suit between these parties, brought upon one other of the notes mentioned, must be considered as settling the legal construction and operation of the note, and of the guaranty of the defendant in the writing now in question. And as to the oral testimony offered in the cause, it may be observed, that in the action heretofore decided, the defendant had been permitted to prove a verbal agreement between Bennett [ * 521 ] * and Chaplin, to consider the defendant as holden for the payment, on the condition that Chaplin could not pay. And on the motion for a new trial in that cause, the admissibility of this parole evidence was thought questionable; although decision upon this point was rendered unnecessary, the plaintiff having produced evidence sufficient to charge the defendant as the surety of Chaplin, even adopting the defendant’s construction of his guaranty, by virtue of the parole agreement between Bennett and Chaplin.

We are now, however, called to decide the question whether this parole agreement is admissible to control the construction of the defendant’s written contract; for, if it is, the defendant is entitled to a new trial; and to show, if he can, the splvency of Chaplin when this action was commenced.

The parole agreement offered to be proved is the same, substantially, as that which had been proved at the trial in the former cause ; but its position, in the order of the transaction, seems in this case to be differently stated. In this case, it preceded the making of the note in question; and in the other, it took place at the delivery of the notes to Bennett, the time when the contracts, in both instances, are to be considered as made with Bennett.

As now placed, this evidence may be objected to as irrelevant. In the motion, the previous agreement between Bennett and Chaplin is not stated to have been communicated to Adams, the defendant; and then it is in no sense his agreement; or, if it was communicated, there is no necessary presumption that he subscribed his guaranty with any reliance upon that stipulation, or that he did not reject it, as operating to his disadvantage. For, if a surety is to be made responsible, in a contract where the law implies no obligation of particular diligence on the part of the creditor to secure his demand against the principal debtor, a suspension of the demand upon the surety, until the entire failure and insolvency of the principal debtor, must operate injuriously upon the surety, in precluding him from every chance for an indemnity, unless this had been secured ; and then the suspension is of no importance to him.

* But, without insisting upon this objection, and con- [ * 522 J sidering Adams as effectually a party to the verbal agreement proposed to be proved, we are all of opinion that evidence of this kind is inadmissible, and incompetent to control the legal effect of a written contract.

The preference, which the law gives to written evidence, when compared with parole testimony, of parole agreements, is the unavoidable result of experience. It is impossible to expect or attain chat certainty and exactness in the one form of evidence, which is found in the other. When a contract has been stated in a writing assented to and signed by the parties concerned, and that continues in being, and under the control of the party relying upon it, evidence of the other parole agreements, to explain or vary the written contract, would be a rejection of that evidénce, which is necessarily the best.

The cases of latent ambiguity, and of peculiar usages, are not, strictly speaking, exceptions to the general rule on this subject; for, in those cases, there is in the written contract a necessary and implied reference to extraneous circumstances, which may happen to be provable only by oral testimony ; and the, written contract is not controlled, but supplied or completed, according to the manifest intent of the parties.

In the case at bar, if the motion of the defendant should prevail, a conditional and collateral contract might be substituted by a parole stipulation, for a contract in writing, which is absolute, and by which the defendant engages, as a surety for Chaplin. The construction to be given of this note, as written, has been settled, by the former decision of this Court, to be the same as if the note had expressed a joint and several promise of Chaplin and the defendant. The defendant became responsible to Bennett, immediately and directly, by the legal operation of the written words which he had subscribed.

The verdict is confirmed by the opinion of the Court, and judgment is to be entered accordingly. 
      
      
        Ante, vol. vi. 519
     