32 Conn. 160 | Conn. | 1864
On the trial of this case to the court, the plaintiff in the first place offered in evidence the original guaranty executed by the defendant, and which is set out in full in the declaration. To this the defendant objected, on the ground that there was a fatal variance between it and the declaration. The particular ground of variance is not pointed out, but on the hearing before us it was claimed to be, that the debt specified in the instrument was payable in three' years, while the debt alleged to be secured by the mortgage was payable in three years or whenever there should be a failure to pay the interest semi-annually. The court below excluded the evidence. We think this decision was erroneous.
The regular course of pleading requires that the plaintiff should in his declaration state his case; that is,- he ■ should
The rule that the plaintiff may on the general issue prove all the material allegations contained in the declaration, and that if these are insufficient in law to sustain the case the objection must be taken by demurrer or some similar mode, and not by objection to the evidence, is fully sustained by the authorities. 1 Swift Dig., 737; 1 Greenl. Ev., § 51. In Canterbury v. Bennett, 22 Conn., 623, the defendant, on a trial upon the general issue, asked the superior court to charge the jury that if all the facts set forth in the declaration should be found by them to be true, they constituted in law no reason why the plaintiff should recover, and that their verdict must be for the defendant. But the court refused so to chai-ge, and this court refused to grant a new trial, upon the ground that the proper mode of taking advantage of such a defect in the declaration, is by a demurrer, a motion in arrest or a writ of error. If the court could not direct the jury to disregard the evidence on the ground that it would not constitute a cause of action, it is clear that it could not exclude the evidence for the same cause.
No case has been cited which when carefully scrutinized would lead to a different result. We have been referred to
Although the plaintiff is entitled to a new trial for the rejection of the testimony, he does not claim it if the court are satisfied from what appears in the ease that it would be of no avail to him. We are not satisfied that this would be the result. We are not clear that if the objection made by the defendant could have been properly taken, it would have prevailed. Tliere are several expressions in the instrument given by the defendant, from which it may pei’haps be inferred that it was drawn up with reference to the mortgage in question, as a document already prepared and agreed to by the defendant.
It speaks of certain charges and liabilities “ which are agreed to be paid in and by said mortgage,” of costs and charges “ agreed to be paid in and by said mortgage,” and of costs and expenses in the collection of the debt“ as agreed in and by said mortgage to be paid.” If then the guaranty was drawn up with reference, and if it refers in terms, to an existing writing, which is to be executed as a mortgage, the two ought to be construed together. There is no irreconcilable discrepancy between them. One speaks of the debt as payable in three years with interest semi-annually. The other of a debt payable in three years with the interest payable semiannually, with the right to foreclose the mortgage, in the same manner as if the principal had been made payable, on a failure to pay the interest. Both speak of the debt as being in terms payable in three years. If the two instruments are to be construed together we see no objection to the proceedings on the part of the plaintiff.
The plaintiff offered in connection with the guaranty parol evidence to show that the defendant requested the plaintiff to institute proceedings for the foreclosure of the mortgage, and that the plaintiff complied with this request. This evidence was objected to and the cpurt excluded it.
We do not consider it necessary to examine the question
We therefore advise a new trial.
In this opinion the other judges concurred; except Park, J., who dissented.