Allen v. Spafford
42 Vt. 116
Vt.
1869
Check Treatment

The opinion of the court was delivered by

Prout, J.

The written instrument, in respect to'which parol testimony was admitted by the court, indicates the purpose for which it was given. The plaintiff had enlisted and was about to enter the military service of the United States. He drew the order for his extra state pay, which it was contemplated would come into the hands of the defendant by virtue of the power of attorney, made a part of the case. It was not given, so far as -the case shows, upon any consideration, except as to the sum of seventeen dollars due from the plaintiff to Merrill, and for what might become due 'the defendant. Merrill was paid, as the case finds, and it is not claimed that any thing became due the defendant. Another fact is noticeable, and that is, Merrill was not aware of the existence of the instrument, and makes no claim to any part of the fund to which it refers. In view of these facts, the writing is a mere direction to the defendant holding the money for the plaintiff, as to its appropriation, and does not conclusively create or fix a debt upon him, either in favor of. Merrill or the defendant. This is apparent from its terms, so far as Merrill is concerned, as it was revocable upon notice. But another view. *120The consideration upon which the writing was given is open to inquiry. If none existed, as between these parties, the defendant had no claim to the money, but held it for the plaintiff and as his debtor. That could be shown only by parol, which necessarily lets the plaintiff into proof as to the object and purpose the parties. had in view in giving it; and with that evidence, the court were able to give it effect according to that object, and as the parties intended. As the court say in Perkins v. Adams, 30 Vt., 230, the “unwritten as well as written part” of the contract is to be taken into.consideration. The case, as to the admissibility of the evidence-objected to, falls within the principle of that decision.

As . to the judgment in the trustee suit, which- the defendant • relies upon,,as protecting him against a recovery, in this action, the plaintiff was-not a party, as claimant or otherwise, to it; and his.money, in the defendant’s hands, is not affected by that proceeding. It was the defendant’s duty, if he desired to conclude the plaintiff’s right or to protect himself, to have appeared, made disclosure and brought the facts “ into the view of.the court.” Had he done so, no doubt he would have been discharged as trustee of Merrill, as the statute exempts a soldier’s state pay, as this fund was, from attachment. Beside, the defendant, independent of any implied obligation arising, from his relation to the plaintiff in respect to this money, assumed the duty of appearing in that suit, as the jury must have found ; promised the plaintiff that he wpuld, and make disclosure ; and the plaintiff, no doub.t, otherwise would have appeared and asserted his claim to the fund. As. between these parties, under such circumstances, that judgment, was unfairly, obtained, and the defendant can not claim any advantage from it. Marsh v. Davis, 24 Vt., 363.

The judgment of .the county courtis affirmed.