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Ensign v. Webster

1 Johns. Cas. 145 Court N.Y. Sup. Ct. English

Delivered by Lansing, Ch. J.,

Contents

Majority

p. 175
*Ensign against Webster & Webster.

Headnote

A receipt in full for money, is not conclusive evidence, and parol proof of a mistake may be given.
This was an action of assumpsit for goods sold and delivered. The declaration contained also a count upon an insimul computassent.
The defendant pleaded non-assumpsit and payment, with notice of a set-off. The cause was tried before Mr. Chief Justice Lansing, at the last July circuit in Albany, when the plaintiff proved that he and the defendants had been jointly interested in the manufactory of paper and a paper mill; that on the 20 th October, 1795, a settlement took place, when a balance of 126Z. Is. 9cZ., was found due from the defendants to the plaintiff; that the defendants were also partners in other concerns generally, and one of them gave the plaintiff a writing in the following words: “ Due Pere Ensign 126Z. Is. 9eZ.,” and desired him to keep it, and promised that he and the other defendant would give him their note for that sum.
The plaintiff also read a letter addressed to him by the defendants, dated 6th June, 1798, in which they spoke of the settlement in 1795, and acknowledged to have seen a memorandum of that settlement in a book of the plaintiff, but expressed a doubt as to the time when the memorandum was made, and referred to one Grant for information, by which they said they would be governed.
On the part of the defendants a receipt signed by the plaintiff, was offered in evidence in the words following : “ Received from the 30th day of May last to this day, 121Z. 8s. 10cZ.. in full for journeymen’s wages, and my part of the pro
p. 176
fits of the paper mill from that day, and also in full 'of all other demands to this day, the journeymen’s wages, boys’board, and in fact, of all demands I or they may have on the said mill, or the proprietors thereof to this day. Witness my hand the 14th day of July, 1798.” [*146] ’ *The plaintiff then offered to prove, that there was a mistake in the general terms of this receipt and that it was given for moneys which had become due for his profits and the expenditures attending the said mill, from the 30th May, 1798, until the date of thé receipt only? and that the sum of 126k Is., 9d. due to him on the- settlement of 1795, had never-been paid. This evidence was "overruled; and a verdict was thereupon taken for the defendants." -
The.plaintiff moved for a new trial, on the ground that the evidence last mentioned ought to have been admitted.
This was opposed by the defendants, Who insisted that the plaintiff was concluded by the express terms of his receipt, and ought not to be allowed to contradict it.
Spencer, for the plaintiff.
Van Véchten, for the defendants.

delivered the opinion of the court. On the trial I overruled this evidence, on the principle that the plaintiff having deliberately acknowledged in writing, on the 14th July, 1798, that all the accounts respecting the paper manufactory, subsisting between him and the defendants, had been fully satisfied and paid, he ought not to be permitted to destroy the effect of that acknowledgment by parol proof.

My reflections on the subject since, have convinced me that I was not correct in that opinion. A mere receipt for money is not within the rule which prohibits a party from giving evidence by parol, or essentially to vary a written agreement. The application of the rule to this extent would prevent the correction of any mistake, however apparent, and in many cases operate unjustly.

We are, therefore, of -opinion, that the evidence ought to

p. 177
have been admitted, and that a new trial be awarded. (See 2 Term. 366. 5 Vezey, jun. 87.)[1]

Rule granted.

(a) (a) Cowen & Hill’s Notes to Phil. Ev. 214, 215. Trisler v. Williamson, 4 Harris & McHenry, 219. Maze v. Miller, 1 Wash. C. C. R. 328. Burnap v. Partridge, 3 Vermont R. 144. Wright v. Wright, 2 M’Cord Ch. R. 192, 205. House v. Law, 2 Johns. R. 378. MKinstry v. Pearsall, 3 id, 319. Tobey v. Barber, 5 id. 68. Putnam v. Lewis, 8 id. 389. Johnson v. Weed, 9 id. 310. Tucker v. Maxwell, 11 Mass. R. 143 .