#### Smith v. Brown.

l I From Craven. J

Earol evidence, according to the general rule, is inadmissible to vary or contradict a contract reduced to writing; by a variety of decisions, ordinary receipts do not appear to be subject to the operation of the rule, because they do not contain evidence of a contract, but of payment in discharge of a contract; but when, in addition to the receipt of money, a condition is annexed upon which alone the party shall become liable to a further payment, it assumes the nature of a contract, snd must be governed by the same rules of evidence.

If an obligor paya less sum than is due, either befox-e the day specified, or at another place than is limited by the condition, and the obligee receive it, this is a good satisfaction.

Accord and satisfaction made before a breach of a covenant, cannot be pleaded in bar of an action on the covenant; but where any damage has accrued under the deed, the accord may he pleaded in discharge of such damage.

This was an action of covenant, brought upon a chatty party of affreightment, tried before Badger, Judge.

*581On tlie trial it appeared that the material stipulations of the charter party were, that the plaintiff let to freight to the defendant the schooner Enterprise, of which he was owner, for a voyage from Newbern to the island of Bermuda, and from the island of Bermuda back to Newbern, the schooner to he at the risk of the owner during the voyage. The plaintiff covenanted that the schooner was, and should be during the voyage, staunch and strong, sufficiently tackled and apparelled, &c.; and the defendant covenanted to pay to the plaintiff for the freight of the vessel g 235 50 per month, commencing from the date of the charter party, and so in proportion for a less time as the vessel should be continued in the said service; the freight to be payable in five days ilfter the return of the vessel to Newbern, or in five days after the voyage should be otherwise in any manner determined, and notice thereof given to the defendant: the deed bore date 21st of Ocher, 1819.

In a few days the schooner commenced her voyage, and arrived at Bermuda on the ninth day after getting to sea; the lading was disposed of and the master put to sea on his return. The night after leaving Bermuda, he met with heavy weather, and it continuing boisterous with severe gales from the north-west for more than thirty days, on the 16th of January, in the evening, the master-found himself near the coast; and being satisfied, from the condition of the vessel and state of the weather, that she must perish during the night, he run her ashore while there was light enough to save the lives of the crew; the vessel soon after went to pieces and was lost.

On the 3d ol February, no tidings having reached Newbern of the vessel, and the parties being ignorant of the result of the voyage, the defendant paid to the plaintiff the sum of g 502.40. and the plaintiff executed a receipt for the same in the following words:

Received, Nowbern, February 3d, 1820, of Sylvester Brown,'five hundred and two dollars forty cents, which amount it is understood *582by the parlies shall be in full consideration for the charter of the schooner Enterprise on a voyage to Bermuda and back to the port of Newbern, provided the said schooner shall not arrive at the aforesaid port of Newbern at any lime after the 25th day of December last, but should the said schooner arrive at the port ot Newbern, at any time after the 25th day of December last, the charter parly is to receive the same construction as though the above receipt had not been given.

(Signed) JV'athl.' Smith.

On the trial, the defendant offered the payment and the receipt in evidence in support of the plea of “ accord and satisfaction.” The plaintiff’s counsel then offered to give in evidence, the deposition of one Beverly Rew, to explain this receipt, 'there being no fraud alleged in the transaction. ) The deposition had been regularly taken, and contained a statement to the following effect: Rew was present at the plaintiff’s store when a settlement took place between the plaintiff and the defendant on account of the charter party, and was called on by the plaintiff to take notice of the terms of the settlement: the defendant brought the receipt written; the plaintiff objected to the form of the receipt, on which the defendant said, if the plaintiff would sign the receipt, it would make no difference, as there was very little doubt but that the vessel was lost and would never be heard of again; but if she returned, or was heard of, the charter party would remain in full force, as if no payment had been made; the plaintiff proposed to write a new receipt, but the defendant said he was in a hurry and it would make no difference.

The admission of this deposition was opposed on the part of the defendant, because it went to contradict or vary the written instrument, and to show that the payment was made and received on terms other than those stated in the writing itself: and the presiding judge rejected the evidence.

If freight were calculated up to the determination of the voyage by the loss of the vessel, there would be due on the charter party $ 170 more than the sum paid to the *583plaintiff, and for that excess the plaintiff claimed a ver-diet; his counsel insisting that the receipt not under seal could not operate to discharge the deed, and that the payment and the written instrument did not amount to an accord and satisfaction, because it was the payment of a less sum in discharge of a greater. The presiding judge held, that this was an accord with satisfaction to support the plea, and directed the jury to find for the defendant, which they did.

A new tidal was moved for. because of error in the judge; 1st, in rejecting the deposition of Rew; and 2d, in instructing the jury that there was a sufficient satisfaction to support the plea. New trial refused, judgment and appeal.

Ruffin, for plaintiff.

Gaston, contra.

Taylor, Chief Justice.

The compi’omise seems to have been made by both parties, under an expectation that the vessel had been lost before or at the 25th of December; until which time Brown agreed to pay the freight, and Smith to receive it, in full discharge of the vessel’s earnings, with the ^exception only, tiiat if she returned after the 25th, Brown should be farther liable. In the event of her having been lost before the period settled between the parties, Brown had paid money to which the charter party had not made him liable; in the event of her being lost after that time, Smith had lost money to which he would have been entitled by the original contract. The effect of the parol evidence offered was to make Brown liable to farther freight upon mother event not stated in the settlement, and in positive contradiction to it, and in addition to that of the vessel’s return after the 25th; in other words, he should not only pay additional freight if the vessel returned after the 25th December, but he should also do so if she was heard of after that time. The contract of the parties is reduced to writing, *584and is most likely to contain the stipulations they really made; the part not so written down, rests upon the memory of a witness, who may have misunderstood the par-ues? or whose memory may have betrayed him. If this were to be the construction of the written compromise, it may be asked what advantage could Brown derive from it in any manner? If the settlement made him liable for the freight after the vessel returned to Newbern, and if by the charter party he was also liable after the voyage was determined, lie was left by the compromise where the charter party had placed him, with the additional inconvenience of having advanced a considerable sum of money before he was liable, if liable at all, to pay it. It does not seem probable that he would have advanced this money without the prospect of some reciprocal advantage; and I do not see how he could receive any except in the purchase of an exemption from liability for freight, for a loss happening after the 25th of December. It appears to me, that to admit parol evidence in this case would introduce the very mischief to guard against which the rule was first established. Prudence and caution in the management of affairs, would he vain, if men Were not able to discover the engagements they had imposed on themselves by inspecting the documents they had intended to contain the sole evidence of them. If contracts may be composed partly of writing and partly of words, depen-dant on the memory of witnesses, then no man can tell, till a trial comes on, the extent of his liabilities. In the case of Powell v. Edmonds, there were printed conditions of sale of timber growing in a certain close, not stating any thing of the quantity, parol evidence that the auctioneer at the time of sale warranted a certain quantity was rejected; the Court saying the purchaser ought to have had it reduced to writing at the time, if the representation then made as to the quantity swayed him to bid for the lot. That if the parol evidence were admissible in that case, they know of no instance where a party *585may not, by parol testimony, superadd any term to written agreement, which would be setting aside all written contracts and rendering them of no effect. (12 East 10. .j It is true that by a variety of decisions, receipts do not appear to be subject to the operation of the rule, because they do not contain evidence of a contract, but of payment or discharge of a contract; but when, in addition to the receipt of money, a condition is added upon which alone the party shall become liable to a Farther payment it assumes the nature of a contract and must be governed by the same rule of evidence. It must be considered as conclusive proof that the party signing lias relinquished all other conditions than those specified. However there does not appear an entire uniformity of opinion even as to receipts: for in Miner v. George, the judge held, that a receipt in full, where the person who gave it was under no misapprehension and could complain of no fraud or imposition, was binding upon him. ¡1 Campb. 392.) With respect to the objection that this is not an accord and satisfaction, because the sum paid w7as less than had become due at the date of the contract, it is to be observed that, according to the. charter party, the freight ivas payable in five days after the return of the vessel to Newborn, or in five days after the voyage- should be otherwise in any manner determined, and notice thereof to the defendant Brown. Now, though the voyage.was. determined when the money was paid, neither party had notice of it, and the freight consequently, though due, was not payable. This brings it within the rule in Finnel’s case, that if the obligor or lessor pay a less sum, either before the day, or at another place than is limited by the condition, and the obligee or feoffee received it, this is a good satisfaction. (5 Co. 117.) It is further objected to the plea, that an accord and satisfaction made before breach of a covenant, cannot be pleaded in bar of an action on the covenant. The rule is a correct one, for the action being founded on a deed, that can only be discharged by a deed; *586but when any damages have accrued under the deed, the accord may be pleaded in discharge of those damages. And the cases cited show this distinction plainly. In the case of Snow v. Franklin, (1 Lutw. 358.) the accord was made before the rent became due, and if the plea had been sustained, the effect of it must have been to discharge the deed by parol. In Kaye v. Waghorne, (1 Taunton 427.) the covenant declared on, was a covenant to levy a fine upon request; and the accord pleaded was, that before the request made, it was agreed between the parties that the defendant should give a bond of indemnity against his wife’s claim of dower. There were two fatal objections to this plea; one was, that nothing was due to the plaintiff when the accord was made; the other, that the accord was executory. But whenever damages have accrued by reason of the breach of the covenant, an accord executed is a good plea in discharge of them. And to this effect are all the cases. (Cro. Jac. 99. Blake’s case, 6 Co. 43 6.) In the case before us, Smith had, at the time of the accord, a right to nearly three months’ freight then due, though solvendum in futuro, a claim which might then have been released by him, and for which he might acknowledge satisfaction. (Lith sec. 512.) Tor these reasons, I think there is no error in the judgment of the Superior Court, and that it must be affirmed.

Henderson, Judge, concurred in this opinion.

Ham,, Judge,

dissentiente. — I confess I entertain doubts respecting the opinion given by my brethren in this case. It may be taken for granted, that where it is proper to explain a writing, not under seal, by parol evidence, it may be done in a court of law as well as in a court of equity; and I grant that when it appears to be the intention of the parties to commit their contract to writing, whether under seal or not, and they do commit it to writing, it is not to be explained by parol evidence in any court, unless for fraud, mistake, &c. Examine this case *587by these rules. Did the parties consider at the time, that they had committed their contract to writing? It appears from the evidence, that Smith objected to signing the writing; he was told by Brown that his signing made no difference; that if the ship yvas heard from, the charter party should have the same construction as if the writing was not signed. This was the contract; it was not confined to the arrival of the ship at Newbern. It seems that the writing was considered as a receipt for so much money at all events, but not a writing containing all the terms of their contract; it was a settlement in case the vessel did not arrive or was not heard from. It cannot be objected, that the contract is not mutual, as explained by the parol evidence; for suppose it had been ascertained that the vessel had been lost one month after her departure, the plaintiff would have been bound to return part of the money which he received as freight. Streter v. Jones, decided last term. (1 Brown 92.)

Judgment appirmed.