Bigelow v. Benedict, 6 Conn. 116

Bigelow v. Benedict

6 Conn. 116 | Conn. | 1826

Peters, J.

This case presents two questions. 1. Is Tucker a competent witness to the deed in question. 2. Are the notes well described in the condition thereto annexed ?

Tucker was the principal debtor. Benedict became his surety, and pledged his estate to Bigelow, to secure this debt. Tucker subscribed the deed as a witness; and was called, by Bigelow, to prove its execution, to effect a foreclosure, and thus pay his own debt with Benedict’s estate ; thereby becoming his debtor for the same amount. Tuckers interest in the event, if any he had, is perfectly balanced; as the principal is always bound to indemnify his surety. 1 Phill. Evid. 54. and the authorities there cited. But admitting Tucker to be interested, against whom is his interest? “ The mortgagee,” say the de fendants’ counsel. Who objects ? The mortgagor. But it is a well settled rule, that a witness is competent, when called on to testify, by a party against whom he is interested. 1 Phill. Evid. 57. n.

Are the notes well described in the condition annexed to the deed ? It is correctly said, by the defendants’ counsel, that in relation to all written documents exhibited as evidence, the court are to decide upon the words they contain; and what is the legal construction of the words used, is the only enquiry, *121But it is not true, that in this case, the court are called upon to say what is the import and meaning of a note given for “ one hundred.” This certainly would be a vain undertaking. But we are called upon to say, what is the meaning of the defeasance annexed to the deed in question ; and this is to be ascertained, by the words used, the subject matter, the context and the intention of the parties. The sentence is not very accurately expressed ; but read with the eyes of common sense, it is perfectly intelligible. Omit the word “each,” or place it after the word “ notes,” and the meaning will be precisely what it now is, viz. four notes for one hundred, and one for two hundred, dollars. The subject matter is a debt in dollars ; and the context demonstrates the intention of the parties, one to give, and the other to receive, a real pledge for the security of this debt. The sentence is eliptical; and the word “dollars” is understood wherever the sense of the contract requires it. In Booth v. Wallace, 2 Root 247. in an action on a note for “ thirty-two, twelve shillings, and five pence,” it was decided, and I think correctly, that the word pounds, after “ thirty-two,” was necessarily implied.

I would not advise a new trial.

The other Judges were of the same opinion, except Brain-ard, J., who was absent when the case was argued, and therefore gave no opinion.

New trial not to be granted.