Ferguson v. Harwood

Story, J.

delivered the opinion of the Court as follows:

Several exceptions have been taken in this cause. The first proceeds on the ground that the record was not authenticated by the clerk in due form of law. The statute of the United States of the 26th of May, 1790, declares that the records and judicial proceedings of the Courts of any state'shall be proved and admitted in any other Court within the United States by the attestation of the clerk and the seal of the Court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding-magistrate, as the case may be, that the said attestation is in due form of law. it is conceded that such a certificate accompanied the record objected to. It is therefore a case within the words of the. law, and the Court below were precluded from receiving any other evidence to show that the attestation was not. in due form of law. The record so authenticated was properly admitted in evidence.

Even it the points had been open, the Court are not satisfied that any material variance existed between the attestations of the different clerks.

The Court are also of opinion .that the second exception cannot be sustained. The' writing produced did not purport to be a record; but a mepe transcript -of minutes extracted from the docket of thé Court. There is no foundation laid to show its admissibility in the cause.

*413 The third exception has presented the chief difficulty which we have felt in deciding thd cause. It is addressed to the variances between the declaration and the contract produced m evidence. The inducement of the declaration alleges « that the said .Walter as one of the administrators of William E. Berry, deceased, on, &c. at, &c- delivered unto the said Enos in part of his claim against the estate of the said William three hogsheads of crop tobacco, &c. he, the said Enos, to be allowed per cent, therefor the highest six month’s credit price at the place aforesaid during that time after, rescinding the embargo.” The contract produced in evidence is without the words “ he the’said Enos.” There,is therefore a literal variance, and its effect depends upon the consideration whether it materially changes the contract.

In general, Courts of law lean against an extension of the principles applied to cases of variance. Mistakes of this nature are usually mere slips of attornies, and do not touch the merits of the case. Lord Mansfield has well observed that it is extremely hard upon the party to be turned round and put to expense from such mistakes of his counsel, and it is hard also upon the profession.

It will be recollected that this does not purport on the face of the declaration to be a description of a written instrument, nor the recital of a deed or x’ecord in hcec verba. In l-espect'to the latter, trilling variances have been deemed fatal: but as to the former, a more liberal rule has been adopted. In setting forth the material parts of a deed or other written instruments, it is not necessary to do it in letters and words. It will be sufficient to state the substance and legal effect. Whatever, however, is alleged should be truly alleged. A contract substantially different in description or effect would not support the averment of the declaration.

In the case at bar, it is very clear that the word « Enos” was by a mere slip inserted instead of « Walter.” It is repugnant to the sense and meaning of the contract that the creditor who received the tobacco at a stipulated price in part payment of his debt, should allow to himself that price. From the nature of the transaction the debtor must be entitled to the allowance. *414 If the same words had.been introduced into the written contract, itself, they must have been rejected as nonsensical or repugnant, or have had imposed upon them a sense exactly the same as if the words had been '«the said Walter.” And a declaration which should altogo- • ther have omitted, the words, or have given that legal sense, would have well supported án action../ Can a different result take place, where the repugnancy is not in tho contract, but in the declaration ? A majority of the Court arc clearly of opinion that it cannot. • The words of a contract stated in a declaration, must have the same legal construction as they would have .in the contract itself.

The context manifestly,' in ^this case, shows the repugnancy. - It is impossible to read the declaration and not to perceive that the price is to be allowed to the debtor, and not to the creditor. Many cases have been cited where the variance has been held fatal, but no one comes up to the present. The caso of Bristow v. Wright, (1 oug. 665 )is the strongest. There the demise was alleged to be át a' yearly rent payable quarterly. The demise proved was without any stipulation as to the times of payment. The Court, held that the derhise laid and that proved were not the same. But if the demise had been truly laid, and the declaration had proceeded to allege that the rent was to be paid by the lessor to tlie lessee, we think that tire action might'wcll have been maintained notwithstanding the- repugnancy. That in effect would be the samo as the present case.

In King v. Pippet, 1 T. R. 235, where the declaration set forth a precept and improperly inserted the word (C if,” which made it conditional, the Court rejected the word, and’held the variance immaterial. The’ Court said it was impqssible to read the declaration and not to know what it should be.' There are other cases to the like effect.

We are therefore satisfied'that tlie variance is immaterial, because it does not change the nature of the contract, which must receive the same legal construction, whether the words be in or. out of the declaration,.

A second variance is supposed in the allegation that the promise-was to return the tobacco or its value, if *415 tlie property in the bond of conveyance mentioned in the declaration was riot recovered -in the suit then depending for the recovery thereof; whereas the contract produced in evidence contained no limitation to a covery in that particular suit. We are satisfied however that the Plaintiff lias declared according to the true intent of the parties as apparent on "the contract. It could never have been, their intention to postpone the right to a return of the tobacco or its value, beyond the time of a recovery, or failure in the suit then depending. Any other construction, would have left the rights of the^parties in suspense for an indefinite, period, wholly inconsistent with the avowed objects of the- contract.

On the whole, it is tlm opinion of the Coiirt that the judgment be qffiriiiek with costs.