CLARKE VERSUS RUSSEL
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In Clarke v. Russel, the Supreme Court reversed a judgment where the trial court allowed parol testimony to explain two letters offered as evidence of a guarantee or undertaking. The Court held that because the alleged undertaking concerned the duty of another and thus fell within the statute of frauds, it must be entirely in writing and could not be varied or materially explained by oral testimony, making the judge's broad instruction to the jury on this matter reversible error. The Court awarded a new trial without deciding whether the two letters themselves constituted a valid guarantee.
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The opinion of the Court, after lome days deliberation; was delivered by the Chief Juftice, .in the following terms; •
Eelsworth, Chief JaJUcc. This caufe comes up on a bill of exceptions,.on the face of vvh'ch three exceptions appear. 1. Firll, that bills of exchange, which had been non-accepted,’ and protefted for non-payment, were admitted in evidence unaccompanied by protejis for non-acceptance'.
According to a'general rule, laid down by this Court; in the cafe of Barry and Brown, from Virginia, .and from which rule there'appear no fpecial circumftances to' exempt the prefent. cafe, this exception will not Hold;
2. A further exception is, that the Judge in his charge to the Jury, held, that the two letters from the Defendants to the Plaintiff below, of the 20th and '21ft of-January 1796, which werefetup to’prove an undertaking, or guarrantee, might ⅜ explained by parol tcjlimony ; of which kind of teftimony fonie had palled to the jury, without objedliojn, but for what purpofe does not now appear,, as there were divers Counts; feme of which parol teftimony might have fupported.
The undertaking declared upon, in the Count, to which the verdidl applies, being for the duty of another, it muft; to fave it from the llatute of frauds, and.perjuries, be in writing, and wholly fo. The. two letters, therefore, yvhicH are’ relied upon as th$ written agreement, cannot be added to, or varied, by pa-rol teftimony. Nor can they be fo far explained by parol tefti-mony, as to affedl their import, with regard to the fuppoled Undertaking. The charge then, of the Judge, that “ they might be explained by parol teftimony,” expreffed as a general rule, and without any qualifications, or reftri&ions, was too broad ; and may have milled the .jury. . On this ground there muff be a reverfal. •
3. It is, therefore, unneceffary to decide the remaining quef-tioir—Whether the two letters did, of themfelve.s, import an undertaking, or guarrantee ? It may be proper to fuggeft, however, that a majority of the Court, at prcfent, incline to the opinion that they do not.*
Judgment reverfed, and a Venire de novo awarded.
*
I h^tve undei’floodj that the CnirV Jcjt/ce, and Clshíno rJuf»P€^ were for the affirmative and I:;t un i,, Paterson*, and WashinIgA tost, jujures, were for the negative, ap-fwer, on the third queftioin
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