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{Dana v. Boj%, 2 J. J. M. t 587); or that a note for money might be discharged by the
delivery of a horse {Garten v. Chandler, 2 Bibb, 246) ; or that a note for "dollars'* or for
"current money" might be discharged by delivering notes of the Bank of the Common-
wealth {Baugh v. Ramsey, 4 Afon., 155; Stone v. Ramsey, Ibid.. 238) ; or that an obligor
agreeing to pay a specified sum for specified property or services should pay an additional
sum on the happening of an event {Querryv. White, 1 Bibb, 271 ; Castleman v. Southern
Mut. Life Ins. Co., 14 Bush, 197) ; or that an obligor agreeing to pay money by a writing
which expressed no condition should not be compelled to pay except on a condition (Dale
v. Pope, 4 Litt., 166; Logan, &c, Turnpike Co. v. Pettii, 2 B. M., 428; Wright v. Shelby
Railroad Co., 16 B. Af., 4) ; or from averring that the payor in a note for "$170 for one
brown mule, provided that said mule is sound and in good condition," was induced to
make the purchase and give the note by the payee's verbal agreement to furnish the payor
a specified quantity of corn at a specified price, which he had failed to do {AfcKegny v.
Wide kind & Co., 6 Bush, 107*) ; or from showing by parol evidence "what was the un-
derstanding of the parties." 3 Bibb, 320.

* In Engleman v. Craig, a Bush, 424, according to my understanding of the case, it was held that, there
having been a written sale of property by the defendant to the plaintiff in consideration of $ 700 to be paid
as provided in the writing, the defendant, without proof of fraud or mistake, had a right to prove by parol
evidence that, as part of the consideration for said property, the plaintiff had agreed to surrender to the
defendant the note for 9666.66^ on which the action was brought ; and, so understanding, it seems to me
that the decision is n3t supported by either of the cases cited in the opinion, viz., Trumbo v. Curtwright,
Gordon's heirs v. Gordon, and Gutty v. Grubbs, the decisions in which are stated in head 3 of this note ;
that it conflicts with the previous decisions cited in head 7 of this note; and that it was impliedly over-
ruled by the decision in McKegny v. WiAekind & Co. *

In Sutton, &*e., v. Hood, 86 Ky., 257, there is a dictum, founded on Pierce v. Woodward, 6 Pickering, ao6,
that a vendor of land for a money consideration can prove a contemporaneous verbal agreement between
him and his vendee that no intoxicating liquors should be sold on the premises. But in 14 Bush, 203, the
court said with reference to Pierce v. Woodward: "This case was decided in 1828. On closer examina-
tion we find that it has of late years been entirely disregarded in Massachusetts."

The case of The L. A N. R. Co. v. Thompson, 18 B. M., 735, has no bearing in this question, because

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628 FORMS.

8. But, as a contract which contains no statement as to the consideration raises only a
prima facie presumption of a sufficient consideration, parol evidence, unless inconsistent
with some provision of it, is admissible, not only to prove that there was no consideration,
but to prove what the consideration was and that it has failed, wholly or partially, or been
delivered or performed. 4 Litt., 167 ; 4 Met., 155-56.

9. And parol evidence has been held to be not inconsistent with the writing, and there-
fore admissible to prove the respective interests, inter se, of joint purchasers of land (7
Man., 45 ; 6 B. M., 109; 6 Bush, 75) ; to prove, inter se, the true condition and responsi-
bility of parties to a bill of exchange (4 Bush, 679) ; to prove that one joint obligor is the
other's surety (5 B. M., 564, 574 ; lS Id., 648) ; to show that A paid $200 to B at the time
when B covenanted to convey land to A on his paying $100 (2/. J, M., no); to show
that the assignment of a promissory note by the payee, with his name indorsed thereon,
was made without recourse ( Butler v. Suddeth, 6 Mon., 541) ; and to show that the obligor
in a traverse-bond had not been evicted by the sheriff, though the bond recited that the
sheriff had placed another person in possession of the land. 7/. f. M., 14.

10. And if it be apparent that part of an agreement has been omitted from the writing,
parol evidence is generally admissible to supply the omission ; as, to show what land was
referred to in a covenant to convey 500 acres "as soon as I get my warrant laid " (Peyton's
heirs v. Matson, Liti. S. C, 37) ; to show the time and place verbally agreed on for the
delivery of personal property sold (Woodcock v. Farrell, 1 Met., 437) ; and, the only writing
being a note for the hire of a slave, parol evidence was admitted to show the agreement of
the parties as to the mode of employing the slave ( Western v. Pollard, 16 B. M., 315); and,
a widow having for a number of years occupied part of the lands of her former husband, by a
contract which recited that " great difficulties have arisen in setting apart the dower of said
widow," without stating what they were, it was agreed that, "to remedy " said difficulties,
his devisees would give her " in perpetuity seven thousand dollars in lieu of her right of
dower in said estate,*' and that, upon their doing so, she should surrender possession of
the land occupied by her and relinquish dower in the whole estate; and parol evidence
was held admissible to prove that the devisees had agreed to release any claim for rent
during her said occupancy ( Wood & wife v. Lee, 5 Mon., 50); and on a contract which
said — " I, Benjamin Curd, have this day bargained and sold Thomas B. Warfield for the
sum of two hundred and fifty dollars to me in hand paid — which negro is twelve years
old, I warrant said negro to be sound in body and mind, and a slave for life," parol evi-
dence was admitted to prove, 1, that Thomas B. Warfield was the vendee; and, 2, that the
bill of sale had conveyed to him a slave named Maria. Warfield v. Curd, 5 Dana, 31S.

11. Though parol evidence is not admissible to prove that a verbal agreement between
the parties embraced more land than their written contract (see foot note, ante, p. 590 ), it is
admissible to show what land is embraced by the latter ; as, by a conveyance of the tract
on which A. B. lives (4 Dana, 336-37) or by a covenant to convey the tract on which the
obligor resides ( Thompson v. Robertson, 9 B. M. % 383) ; and, if such evidence as to the sub-
ject-matter of the contract raise a doubt concerning the understanding of the parties with
reference thereto, this creates a latent ambiguity which makes parol evidence admissible to
show what was their understanding (13 B. M., 487) ; and it has been accordingly held in a
number of cases, constituting a decided preponderance of authority, that parol evidence is
admissible, in behalf of plaintiffs as well as defendants, to show whether or not the parties
contemplated a surplus or deficit found to exist in the quantity of land sold by written
contract. See note 5, ante, p. 590.

12. If a written contract contain language which is capable of different meanings, parol
evidence is admissible to show in what sense the parties used it ( Wilson v. Robertson, 7
f. J. M., 78) ; including proof of their practical construction of it (5 Mon., 60; 7 Dana,
278, 280; I B. M., 9), which " is entitled to great weight, and should be conformed to,
carried out, and sustained, if it can be done without doing violence to its terms. 2 B. M,,

13. As the Statute of Frauds (G. S., ch. 22, J I) declares, not that the contracts em-
braced thereby shall be void, but merely that " no action shall be brought to charge any
person" upon them, unless they are evidenced by writing, it is settled that proof of a
verbal agreement with the plaintiff is admissible to shield the defendant against an uncon-
scientious demand. 3 Mon., 170-71 and 253; 2 /. /. M., 23; 1 Met., 557; 3 Id., 583;
I Bush, 151-52; 4 Id., 239. Nor can a person escape the consequences of fraudulent con-
duct by pleading the Statute of Frauds. 3 Lilt., 55 ; 2 Duv., 156.

the plaintiff, instead of relying on a demurrer to the answer and counter-claim which pleaded the parol
agreement, took' issue thereon by filing a reply after his demurrer was overruled, and thus waived bis
right to insist on the estoppel. See note, {t>\ ante, p. 122.

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14. As to rescinding or changitig written contracts by verbal agreements J*

( 1 ) As to agreements not embraced by the statute of frauds*

The cases of Patton v. Robinson, 1 Bibb, 285, and Milroy v. Hettsley, Id., 312, were
actions of covenant in which the defendants pleaded covenants performed ; and in the
former of which the defendant offered evidence of the plaintiff's parol agreement to ex-
onerate him and look to another person, and in the latter of which the defendant offered
to prove that the plaintiff had told the witness that the plaintiff and defendant had an-
nulled their contract; and the court not only held that the evidence was inadmissible
because it was foreign from the issue, but expressed the opinion that it was also inad-
missible, because "a covenant by deed can not be released by parol," " every contract
must be dissolved with the same solemnity with which it is entered into." And in an
action on a covenant to deliver tobacco at specified times, a plea that the time for de-
livery had been extended by a verbal agreement was held to present no defence, the
court saying that •* a contract to dissolve and defeat another contract must be of as high
a nature as the one to be dissolved or defeated " (Jfand/ey v. Moorman, 4 Bibb, 1) ; and in an
action on a note for $100, "payable in current money of Kentucky, the defendant pleaded
an award that he should pay $100 in notes on the Bank of the Commonwealth ; and the
court said: «' As the action in this case is founded on a specialty, the parol submission and
award relied on in the plea constitute no good defence to the action." Logsdon v. Roberts'
ex'rs., 3 Mon., 255. But in Shockey's adtrir v.Glasford, 6 Dana, 9, the court, whilst saying:
"We are aware that it has been determined by this court, founded upon some ancient
adjudications, * that when the matter in contest is on a deed, in all such cases the submis-
sion must be by deed, because a specialty can not be answered but by a specialty,' " held
that a submission to arbitrators of the question whether or not a bond has been paid may
be made by parol.

And it is settled that a plea of accord and satisfaction of a specialty debt, under a parol
agreement, constitutes a defence. Jones v. Bullitt, 2 Lttt., 49; Payne v. Barnett, 2 Mar. %
312; IVinslow v. Hardin's ex'r.,3 Dana, 543. It was said, however, in Payne v. Barnett,
that a parol agreement of accord is not valid if made before a breach of the covenant
intended to be satisfied ; but that conflicts with the settled rule that part-payment of a
debt before its maturity is a satisfaction of the whole debt, if so made and accepted (2 Lilt.,
51 ; 3 Met., 88; 8 Bush, 6); and with the decision in Winslow v. Hardin's ex*r, supra,
holding that an unconditional obligation for thirty dollars was a satisfaction of a note for
one hundred dollars payable on a contingency. And, on the other hand, it was said in
Mc Waters v. Drafter, 5 Mon., 497, that, "to be available, the award must be executed
before the day of payment mentioned in the bond ; " but that conflicts with the decisions
in Jones v. Bullitt and Payne v. Barnett, suftra, and probably with the decisions in Robert
v. Barnum, <5rV, f 80 Ky., 28, and several other cases in which the facts do not fully appear,
the question as to the time of making and for executing an accord not seeming to have
been deemed material.

And pleas averring that, before the maturity of the obligation sued on, it had been de-
livered to the defendant and canceled, were held to constitute defences. 1 J. J. M.,
431-32; 1 B. M., 192: but see 6 Dana, 128-29.

And in an action for the trover and conversion of a slave, it was contended that the
circuit court erred in admitting evidence that a bill of sale of the slave from the defendant
to the plaintiff had been rescinded by a subsequent verbal contract, and the Court of Ap-
peals said : " We can perceive no solid objection to the admissibility of the evidence.
The property of a slave may pass by parol as well as by writing." Trumbo v. Curtrigkt,
I Mar., 582.

(2) As to agreements embraced by the statute of frauds.

In Hawkins' heirs v. Lowry, 6 J. J. M., 245, a sale of land by executory contract was
held to have been rescinded by a verbal agreement, "as there was no proof of the exist-

*The rules on this subject do not prohibit averments showing that the obligee has accepted perform-
ance at a different time or place or in a different manner from that prescribed in the contract (1 Lift., 3 ;

1 J.J. M. t 35; 3 Dana, 360, impliedly overruling the decision in Harrison v. Taylor, 3 Mar., 168, and the
dictum in Stuteville v. Miles,* Id., 425, on which that decision was founded); but proof of such accept-
ance is not admissible under an averment that the contract had been performed. 3 Bibb, 99; 4 Id., 489;

2 Mar^ 436

And, as the value of partial performance of a condition precedent in a written contract, if it can be ap-
portioned, may be recovered, not in an action on the contract, but in an action on a promise implied by
law (see notes (3) and (4), ante, p. 67); it follows, a fortiori, that the value of work done or property de-
livered under a verbal contract, changing a written one, can be recovered in an action on the former: see
Chiles v. Jones, 3 B. M. t 51, in which it was held that in such action "the written contract would be admis-
sible evidence as inducement to the parol agreement, and as evidence of its terms."

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ence of any written memorial of the rescission : " but the executory contract vested the ven-
dee with an equitable title to the land ; and the Statute of Frauds applies to contracts re-
lating to equitable as well as legal titles to land (Frowman v. Gordon's heirs, Litt. S. C,
193) ; and the decision in Hawkins* heirs v. Lowry stands alone, perhaps, as to the effect
of the statute on verbal agreements.* It seems sufficient to refer to 3 Litt., 402; 5 Bust,
697; 11 Id., 621.

15. As to Che admissibility of parol evidence to rebut prima facie presumptions.
According to 1 Greenleafs Evidence, J 296, in Courts of Equity, "where a certain pre-
sumption would, in general, be deduced from the nature of an act, such presumption may
be repelled by extrinsic [parol] evidence showing the intention to be otherwise;" the clear
intimation being that such evidence is not admissible in Courts of Law. But no such dis-
tinction seems to exist in Kentucky, where, it is believed, parol evidence is always admis-
sible to rebut prima facie presumptions, in actions at law as well as in equity. See, for
instance, the common law case of Butler v. Sudtleth, 6 Afon., 541, in which parol evidence
was admitted to show that the assignment of a note by the payee, with his name indorsed
thereon, was made without recourse, because those acts raised only a prima facie presump-
tion of an assignment with recourse; and in which the court said: "This presumption,
like all others, is subject to be rebutted or destroyed by proper proof." Consequently, it is
a rule, that the statement of a fact which raises only a prima facie presumption of the ulti-
mate fact relied on by the pleader is not, though a statement of the ultimate fact would be,
a statement of a cause of action or ground of defence. See note 6, ante, p. 151.

Courts of Equity have often denied relief to parties who could obtain relief in Courts
of Law; but those decisions were founded on the rule that he who seeks equity must do
equity, or on some other peculiar rule of equity, and not on any distinction between law
and equity as to admitting parol evidence to affect writings — a distinction which has been
repeatedly held not to exist. 4 Mon., 20 and 157; 2 B. Af, 105.

16. If a party admits that the writing does not truly state the contract, parol evidence "
is admissible to show what it was. 4 J.J. Af, 121 ; 7 B. Af., 590; 8 Id., 438.

17. Written contracts do not estop strangers thereto from introducing parol evidence ;
and, as estoppels by contract (4 Mon., 521 must be mutual, they do not estop the parties
thereto from introducing parol evidence in a controversy with strangers. 7 B. Af., 590.

18. Releases.

According to the common law, a written release under seal, which contained no state-
ment concerning the consideration, was valid, because the seal raised a conclusive pre-
sumption of a sufficient consideration. But a release might be made, for a valuable con-
sideration, without a writing under seal and even without a writing. For instance, in
Gibson, et al., v. Weir, &*c, 1 J* J. Af., 446, the court said : "The plea of release is insuf-
ficient. It does not show that the release was under seal or otherwise effective; " and in
Jones v. Bullitt, 2 Litt., 49, it was adjudged, on parol evidence, that Jones' judgment had
been discharged by accord and satisfaction ; and see 2 Afar., 314; 3 Dana, 543.

The only material common law distinctions between an acquittance by, and an acquit-
tance without, a writing under seal seem to be, 1, that the former is called a " release,*'
whilst the latter is called " an accord and satisfaction ; " and, 2, that the former need not,
whilst the latter must, be shown to have been made for a valuable consideration (see note
10, ante, p. 124) or a good consideration. (See cases cited in note (b) to Form 18, ante, p.
533.) But under the statutes cited under head 1 of this note, though a written release,
whether under seal or not, raises a prima facie presumption of a sufficient consideration
(see head 2 of this note), it may be impeached; and if it be impeached, the plea of release
must, probably, be supported in the same manner as a plea of accord and satisfaction.
That suggestion is supported by the decision in Arnold v. Park, 8 Bush, 6; and is consistent
with the decision in Williamson v. AfcGinnis, 1 1 B. Af., 74, in which the money paid for
the release was a different thing from the "current bank notes " which the covenanters had
agreed to pay, and for non-payment of which they could have been held liable only for
damages to be assessed by a jury.

(b) A general warranty of title to land runs with the land and passes to a remote vendee
(4 Bibb, 225-26; 3 Afar., 324, and cases cited ; l Litt., 395-96; 5 A fan., 358; 9 B. Af., 57),
though the deed to him contain only a special warranty or no warranty (3 Litt., 1 21-22;
5 Id,, 249; 17 B. Af., 82), and entitles him on eviction from the land to recover from the
warrantor the amount of purchase-money paid to him by the first vendee (see cases, supra,
and last paragraph of notes, ante, p. 77) ; and the above mentioned rule {head. 3, p. 626) as
to admitting parol evidence to contradict the statement of a deed concerning the consider-

* There might be circumstances which would estop such a covenantee from relying on a contract
which had been rescinded by a verbal agreement, but the decision in Hawkins? heirs v.Ltmiy was not
placed on that ground.

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ation docs not apply as between a warrantor and a remote vendee: see Hunt v. Orwig, 17
B. M., 73, in which parol evidence was held inadmissible against a sub-vendee to show
that the consideration of a conveyance, which was stated in the deed to be $1,600, was a
tract of land of much less value; and parol evidence would have been inadmissible for the
sub-vendee to show that the consideration was more than $1,600, as such estoppels must
be mutual. 7 B. M., 590.

And if the warrantor's heirs or devisees sue for the land, a plea of the warranty bars
their action to the extent of the value of assets, real or personal, received from the war-
rantor by descent, devise, or distribution. G. S., ch. 63, art. 1, £ 18. As to estoppels by
warranties made before the adoption of the General Statutes see Logan v. Moore, 1 Dana,
58; Proctor, <&V., v. Smith, <&V., 8 Bush, 81 ; and Utterback, &c, v. Phillips, &c, 81 Ky.,
62, and cases cited.

95 . Answers pleading estoppels in pais (a).

a. Answer pleading an estoppel in pais in bar of an action in equity for dower (b).

(Caption as in Form 77, p. 620.)

The defendant, C. D., says that the land in the petition mentioned was sold by a com-
missioner duly appointed (c) for that purpose by the Lee circuit court in an action brought
therein by S. T. and others against the plaintiff's late husband, P. B., and C. C, to whom
said P. B. had conveyed it, and others ; that, in said action, to which the plaintiff was a
party, she, before said sale, filed an answer stating that she had relinquished her right of
dower in said land; and that the defendant, believing that said statement was true (d), pur-
chased said land at said sale and it was conveyed to him, as appears of record in said court.

Wherefore the defendant says that the plaintiff is estopped to maintain this action, and
he pleads the aforesaid facts in bar thereof.

(Verification as in Form I.) E. F., Attorney.

{a) Estoppels in pais, of which I give only two Forms, both relating to real property,
are of such variety as to prohibit enumeration of them here. But it may, I believe, be
safely said that, according to the general current of decisions on the subject, a party who
relies on an estoppel in pais must state facts which show, or which raise a presumption,
that he was induced to do the act to which the estoppel relates by the adverse party's mis-
representation, express or implied, of facts within his knowledge, or his silence as to facts
which it was his duty to disclose, and that he intended or expected those facts to be thus
acted on.

0) This Form is founded on the case of Craddock v. Tyler, &c, 3 Bush, 360, by de-
cisions in which and in Wright, &*c, v. Arnold, &c, 14 B. J/., 638, it is settled that a
woman who, even during coverture, has induced the defendant to purchase property in
which she had an interest, either by .misrepresentation of facts or by silence when she
ought to speak, is not entitled to relief as plaintiff in a court of equity *.

In Connolly v. Branstler, 3 Bush, 702, an action in equity for dower was dismissed be-
cause, at a decretal sale of the land for the benefit of her husband's creditors, the plaintiff
had announced through the commissioner, «• that she would not claim dower against any
one who should become the purchaser," the court saying: "She is equitably estopped
from asserting dower against the purchaser; for the disability of coverture could not ex-
onerate her from fraud." But the correctness of that decision seems questionable, not be-
cause the plaintiff was a married woman when she made the announcement, but because
she had not made any misrepresentation or concealment of facts: if she had been unmar-
ried when she promised not to claim dower, the promise would not have been obligatory
under the statute of frauds; and to pervert a violated promise into a fraudulent estoppel,
because the promise is not obligatory, would seem to be a subversion of the true doctrine
concerning estoppels in pais; and also a subversion of the statute of frauds, whenever its
provisions make the promise unobligatory.

And, a slave having been sold under an execution as the property of another, in the pres-

In an action to settle the estate of an insolvent decedent, to which his widow was made a defendant,
and the petition in which showed that she was entitled to dower, she failed to answer ; and, the land
having been sold under a decree and an order made for a distribution of the proceeds, without any pro-
vision for her, it was held on her appeal that she had no right to complain of the sale, but that she was
entitled to compensation for dower out of the proceeds. Merrhvether v. Stbree, &*c, 2 But A, 232.

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632 FORMS.

ence of a married woman, her failure to disclose her title was held to be an estoppel against
the assertion of it as a defence in an action at law. Daz'is v. Tingle, et aL, 8 B. M., 539.

And in Heck v. Fislier, <5?V., 78 Ky., 643, it was held that, when a husband, with intent
to defraud his creditors, and with the acquiescence of his wife who had knowledge of his
intention, erects improvements on her land at his expense, his creditor has a right to subject

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 87 of 142)