If a clerk of a court certify at the foot of a paper purporting
to be a record, "that the aforegoing is truly taken from the record
of proceedings" of his court, and if the judge, chief justice, or
presiding magistrate certify that such attestation of the clerk is
in due form of law, it is to be presumed that the paper so
certified is a full copy of all the proceedings in the case, and is
admissible in evidence.
But if the writing produced does not purport to be a record, but
a mere transcript of minutes extracted from the docket of the
court, it is not admissible in evidence.
A variance is immaterial which does not change the nature of the
contract.
If a bond of conveyance (then in suit) be assigned, and the
assignor agree to refund to the assignee the value thereof if the
property should not be recovered on the bond, it is sufficient for
the assignee, in a suit against the assignor upon his promise to
refund, to aver that the property was not recovered in the suit
which was pending when the agreement was made to refund.
Error to the Circuit Court for the District of Columbia sitting
at Washington in an action of assumpsit brought by Harwood against
Ferguson to recover the value of three hogsheads of tobacco upon
the following agreement (after describing the hogsheads by their
numbers, marks and weights),
viz.:
"Upper Marlborough, June 16, 1808"
"Received of Walter W. Harwood, as one of the administrators of
William Eversfield Berry, deceased, in part of my claim against
said estate, the three hogsheads of crop tobacco as above stated,
to be allowed ct. the highest six month's credit price at this
place during that time after the rescinding of the embargo. I have
put into the hands of the aforesaid Walter W. Harwood a bond of
conveyance given by Elisha Berry to his son, William E. Berry,
dated March 14, 1798, for the purpose of recovering the property
therein mentioned now depending in a suit in Prince George's County
Court. If the property is not recovered in the aforesaid bond of
conveyance, I hereby bind myself, my heirs, executors, and
administrators to return the above three hogsheads of tobacco, with
legal interest or the value thereof in money, to the aforesaid
Walter W. Harwood, or to his heirs or assigns."
"ENOS D. FERGUSON "
Page 11 U. S. 409
Upon this agreement, the plaintiff declared
"That whereas the said Walter, as one of the administrators,
&c., on _____ at _____ delivered to the said Enos in part of
his claim, &c., three hogsheads of crop tobacco [describing
them], he, the said Enos to be allowed __ percent therefor the
highest six month's credit price, &c."
"And whereas also the said Enos at _____ on _____ put into the
hands of the aforesaid Walter a bond of conveyance . . . for the
purpose of enabling the said Walter to recover and of recovering
the property in the said bond mentioned, a suit for the recovery
whereof was then depending in the County Court of Prince George's
County, in the State of Maryland, the said Enos then and there in
consideration of the premises and the delivery of the three
hogsheads of tobacco as aforesaid, promised and undertook and bound
himself, his heirs, executors, and administrators to return the
three hogsheads of tobacco aforesaid, with legal interest, or the
value thereof in money, to the aforesaid Walter or to his heirs or
assigns if the property in the aforesaid bond of conveyance
mentioned was not recovered in the suit then as aforesaid depending
for the recovery thereof, and the said Walter avers that the
property in the said bond mentioned was not recovered from the said
Elisha Berry in the suit so as aforesaid depending for the recovery
thereof, but that judgment was given for and in favor of the said
Elisha in said suit, whereof and of all which premises the said
Enos afterwards had notice, whereby he became liable to return the
said tobacco with legal interest or to pay the value thereof in
current money of the United States, which value the said Walter
avers to be $180, whereof the said Enos had notice. . . ."
There was also a count in the declaration for money had and
received.
Upon the trial of the general issue the defendant, Ferguson,
took three bills of exceptions.
The first bill of exceptions was to the admission in evidence of
an exemplification of the record of a suit in Prince George's
County Court, which was certified as follows:
"I hereby certify that the aforegoing is truly taken from the
record of proceedings of Prince George's
Page 11 U. S. 410
County Court, and in testimony thereof I do hereto subscribe my
name and affix the seal of the said county court this third day of
January, 1811."
"JOHN READ MAGRUDER, Jr., Clk."
The seal of the county court was annexed with the regular
certificate of the chief judge of the court that the attestation of
the clerk was in due form of law.
The objection to this exemplification was that it did not appear
by the certificate of the clerk to be a full copy of the record of
all the proceedings in the case. The practice of the clerk of the
Circuit Court for the County of Washington in the District of
Columbia was to certify that the "foregoing is truly taken and
copied from the proceedings," &c.
The second bill of exceptions stated that the plaintiff having
read to the jury the evidence mentioned in the first bill of
exceptions, and which had been permitted by the court to be read,
the defendant offered to read a copy of the docket entries of
Prince George's County Court, which the clerk had also certified to
be truly taken from the proceedings of that court. To this
certificate was annexed the seal of the court and a certificate by
the chief judge of the court that the attestation of the clerk was
in due form of law.
The third bill of exceptions stated that after the plaintiff had
read the agreement to the jury, the defendant objected to its
admissibility in evidence upon the first count in the declaration
because it varied from the agreement set forth in that count. But
the court was divided in opinion, and the agreement was read.
The verdict and judgment were for the plaintiff, whereupon the
defendant brought his writ of error.
Page 11 U. S. 412
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 26
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 was 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 if the points had been open, the Court is not satisfied
that any material variance existed between the attestations of the
different clerks.
The Court is also of opinion that the second exception cannot be
sustained. The writing produced did not purport to be a record, but
a mere transcript of minutes extracted from the docket of the
court. There is no foundation laid to show its admissibility in the
cause.
Page 11 U. S. 413
The third exception has presented the chief difficulty which we
have felt in deciding the cause. It is addressed to the variances
between the declaration and the contract produced in 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 percent 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 attorneys, 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 record
in haec verba. In respect to
the latter, trifling 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.
Page 11 U. S. 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
altogether have omitted the words or have given that legal sense
would have well supported an action. Can a different result take
place where the repugnancy is not in the contract, but in the
declaration? A majority of the Court is 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 case of
Bristow v.
Wright, Doug. 665, is the strongest. There, the demise was
alleged to be at a yearly rent payable quarterly. The demise proved
was without any stipulation as to the times of payment. The court
held that the demise 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 the lessee,
we think that the action might well have been maintained
notwithstanding the repugnancy. That in effect would be the same as
the present case.
In
King v. Pippet, 1 T.R. 235, where the declaration
set forth a precept and improperly inserted the word "if," which
made it conditional, the court rejected the word and held the
variance immaterial. The court said it was impossible 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 the 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
Page 11 U. S. 415
the property in the bond of conveyance mentioned in the
declaration was not recovered in the suit then depending for the
recovery thereof, whereas the contract produced in evidence
contained no limitation to a recovery in that particular suit. We
are satisfied, however, that the plaintiff has 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 the opinion of the Court that the judgment
be
Affirmed with costs.