#### James Wakefield *versus*Henry Stedman *et al.*

In an action upon a written agreement, in which the defendants acknowledge that they have received of the plaintiff certain chattels attached by him as a deputy sheriff, on mesne process, and promise to redeliver them in case they shall be wanted to satisfy an execution, it was *held,*that it was not competent to the defendants to show by parol evidence, that the plaintiff, in order to induce them to sign the receipt, promised that upon notice of their being dissatisfied, he would receive the chattels again and discharge the defendants from their liability, and that he did not fulfil his engagement, and in consequence they were prevented from fulfilling theirs.

*Held*also, that the valuation of the chattels in the receipt was conclusive upon the defendants, on the question of damages.

Assumpsit upon a writing signed by Stedman, Lee and Curtis, the defendants, in which they acknowledge that they have received of the plaintiff “ a sorrel horse worth $ 50 ” and other chattels, each valued separately in like manner, attached by the plaintiff as a deputy sheriff, on a writ against Stedman ; and the defendants promise to redeliver the chattels to the plaintiff', in case execution shall issue against Stedman in that suit.

Stedman was defaulted ; Lee and Curtis pleaded the general issue.

At the trial, before *Morton*J., the plaintiff proved a demand and refusal to deliver the chattels.

Lee and Curtis proved by parol evidence, that they were very reluctant to sign the receipt; that to induce them to the plaintiff agreed with them, that if at any time they shoulJ16001116 dissatisfied and give him notice of it, he would receive th property of them and discharge them from their liability on tb receipt; that afterwards they gave him notice that they wer dissatisfied and wished to deliver the property to him and bedscharged from their liability on the receipt; that he engagd to go to the store of Lee and there receive the property® Thursday then next, but failed to do so ; and that the pr^erty was then in the possession of Stedman, and that on tl? next day Stedman absconded, taking with him the property.

*570
      *Sepf.*21 sí.

*Sept. 22d*

The above evidence was objected to by the plaintiff. If ll was admissible and would warrant a jury in finding a verdict in favor of the defendants, the plaintiff was to become nonsuit; otherwise the defendants were to be defaulted. In the latter event, if the defendants were bound by the valuation in the receipt, judgment was to be rendered for that amount, with interest from the time of the demand ; but if evidence to show the true value of the property was admissible, the damages were to be assessed by a jury.

*Porter,*for the plaintiff,

cited to the point that parol evidence was not admissible to explain or vary the written contract, *Erwin*v. *Saunders,*1 Cowen, 249 ; *Hoare*v. *Graham,*3 Campb. 57 ; *Frost*v. *Everett,*5 Cowen,” 497; *Hanson*v. *Stetson,*5 Pick. 506 ; to the point that the parol agreement, even had it been in writing, would not be a defence, being a collateral agreement, and having been made with only two of the defendants ; *Dow*v. *Tuttle,*4 Mass. R. 414 ; *Shed*v. *Pierce,*17 Mass. R. 623.

*Bishop*and *Hall, contra,*

contended that the parol evidence was admissible ; 3 Stark. Ev. 1049, 1054 ; *Barker*v. *Prentiss,*6 Mass. R. 434 ; *M'Minn*v. *Owen,*2 Dallas, 173 ; *Peterson*v. *Willing,*3 Dallas, 506 ; that the consideration of the defendants’ written promise was the plaintiff’s parol promise, and this consideration had failed ; *Lent*v. *Padelford,*10 Mass. R. 236 ; that the case of receipts is an exception to the general rule respecting parol evidence ; and that the valuation of the chattels in this receipt was not conclusive ; *Spencer*v. *Tilden,*5 Cowen, 144.

*Per Curiam.*

It appears to us extremely plqj? that the evidence offered tended to show a condition or de.asance by parol, in direct contradiction to the written agreemet) anc¡ so contrary to the rule. The contract in writing was, plain, unconditional undertaking to deliver the property, at a 'ertain time and upon certain contingencies ; and the parol evience tended to show, that there was an agreement, made atthe time the written contract was entered into, and intendedto overcome the reluctance of the defendants and induce them to sign it, by which the contract was to be discharged upon other *571and different terms. We think it was opposed to the spirit and letter of ihe rule.

It was contended, that the evidence here was admissible inder the exception to the general rule, that a receipt, though in writing, may be controlled and corrected by parol evidence. But it is obvious, that although this instrument is properly Called a receipt, and in form begins by acknowledging the receipt of the property described, yet in substance it is a contract, an engagement to deliver the property at the time and upon the terms specified. It is this contract upon which the action is brought, and upon which the question now arises. The receipt alluded to in the exception, which may be controlled by parol evidence, is merely an acknowledgment of the receipt of money.

It is extremely doubtful, whether if the evidence were admitted, it would show any ground of defence. It tends to show that the plaintiff agreed to receive the property and give up the receipt before the time specified, if offered to him by the defendants. But the evidence does not show that they offered .it to him, or even that he could have obtained it, had he applied for it, as they wished him to do. His failure to do so was at most a failure to perform a distinct collateral promise, not affecting this obligation.

On the other point, the property being valued in the instrument itself, that is to be taken to be the agreed value, and binding upon the parties, unless it is shown that some fraud was practised. The damages are therefore to be computed upon the valuation stated in the instrument.1

*Defendants defaulted.*

See *Johns*v. *Church,*ante, 561 and note.