Creamer v. Stephenson

15 Md. 211 | Md. | 1860

Le Grand, C. J.,

delivered ibe opinion of this court.

This action was brought by the appellee against the appellant on a bond, given by the appellant, for the indemnification of the appellee, under the following circumstances: Stephenson (the plaintiff below) purchased land from Creamer (the defendant). A person, of the name of Tome, having obtained judgment against a person, named Adams, from whom Creamer had previously purchased this land, an attachment, on the judgment recovered by Tome against Adams, was issued and laid in the hauds of Stephenson, and also on the lands. The design of the attachment was, to affect any interest which Adams might have in the lands, or the pro ■ ceeds. Stephenson and Creamer being anxious to complete the purchase, it was agreed between them that Stephenson should pay the purchase money and take a title, upon Creamer giving a bond to indemnify him against these attachments and certain other claims.

Tire bond of indemnity is dated the 3rd day of December 1853. After reciting certain facts and agreements, it proceeds to declare that Creamer is to “indemnify and save harmless the said Stephenson against all and singular the claims aforesaid, and against all costs and reasonable charges to which he may be subjected in resisting said claims, and shall refund to said Stephenson all such sums of money as he, the said Stephenson, may be legally required to pay on account of said claims, or upon other liens upon the land aforesaid, or the purchase money therefor, which may have originated since the date of the said Adam’s purchase thereof, from,”&c., &c.

The plaintiff, to sustain his case, gave in evidence the bond of the defendant, the judgment in the attachment suit and proof of the payment of the amount by Stephenson; and then offered, in evidence a statement of H. W. Archer, Esq. To the admissibility of the following portion of it the defendant excepted, viz: “At the same time Creamer, (the time when the bond was delivered to Archer for Stephenson,) inquired what amount he might be held liable for upon such bond, in regard to the same attachment, and was told by me, that, if Tome obtained judgment, he would have to pay the amount Ill at Stephenson might be compelled to pay, including his costs and expenses, as provided in the bond, but that if the attachment was defeated, he would only have to pay Stephenson’s expenses, which would probably be nothing more than the fees which Stephenson might have to pay his attorney; Creamer objected to Stephenson’s employing counsel at his expense, and I recollect distinctly that it ivas understood that Creamer would have ike case defended by his own counsel, which appeared lo me very proper, as he alone was interested, in the result; and, as I was counsel for Tome, it would have been impossible for me to have appeared or acted, for either Stephenson or Creamer, in the attachment ca.se.”

The objection of the defendant was placed upon the ground, that, by the introduction of the testimony, “it was sought thereby to prove a parol understanding, wholly different and inconsistent with the legal purport of the bond offered in evidence, and that the bond itself must constitute the only evidence of what the contract was between the parties, and that its legal effect could not be varied by any parol agreement or explanation which might be supposed to accompany and explain it.” The plaintiff expressly disclaimed any such purpose in the offer, and declared that the evidence was offered to slum that the plaintiff had acted in good faith in reference to the said attachment suit, and to rebut any presumption of fraud that might be contended for, as arising out of the judgment in the attachment suit having been obtained by default, and, generally, for any other purpose in the cause which “did not vary the purport of the bond. ’ ’ The court overruled the objection of the defendant, and allowed the evidence to go to the jury with the qualification, “that the same should not be allowed to qualify or vary the legal purport or effect of the bond.”

There can be no doubt that is not admissible to vary or contradict a written agreement by parol; but no such effort was made in this case; so far from it, such was expressly prohibited by the court and disclaimed in the offer. And although the law interdicts such variance or contradiction, it. admits- of the introduction of parol evidence in the case of a la~ tent ambiguity, (McColloch vs. Girard, 4 Wash. C. C., 290,) or to prove anjr collateral, independent fact,„about which the agreement is silent. The case of McCreary vs. McCreary, 5 Gill & Johnson, 147, fully sustains the ruling, of the Superior court on this exception. That was an action of debt to recover the amount of a single bill, and the plaintiff pleaded, by way of set-off, a claim for various articles sold and delivered, and upon the trial, proved a lease of land by him to the plaintiff, in which the plaintiff covenanted to pay the defendant a certain annual sum for life, and to pay all claims and demands existing against the defendant at the date of the lease. The defendant also proved an appraisement, made at the request of the parties, of various articles of personal property, (which the appraisers certified the plaintiff was to take as his properly at the valuation,) that such articles were delivered to the plaintiff at the valuation, and that the°Iease, appraisement and delivery were made at the same time. The plaintiff then proposed to prove a verbal agreement between him and defendant, that the value of this property should be applied by the plaintiff to the payment of the outstanding debts of the defendant. The county court rejected the evidence, but the Court of Appeals reversed the decision, and held, that as the appraisers’ certificate did not show in what manner the property valued was to be paid for, parol evidence was admissible to ascertain the fact; adopting the rule as stated in Philips’ evidence, that “though an ambigiuity apparent on tire face of a written instrument cannot be explained by extrinsic evidence, yet, where a question arises, as to the general intention of the parties, concerning which the instrument is not decisive, it has been held that proof of independent facts, collateral to the instrument, may be pro-* perly admitted.” And in Dorsey vs. Eagle, 7 Gill & Johnson, 331, it is said: “It is a well settled principle of law, that parol evidence may be given of collateral and independent facts, which tend to support a deed, provided it is not offered to vary the agreement, and is consistent with the deed.”

Now the language of the contract in this case is -wholly silent as to the 'manner or means to be employed “in resisting'1'1 the claims referred to. There is nothing inconsistent with, or contradictory to this language, in the proof of the independent fact as to how and through whose agency the resistance was to be -made. We think the court was not in error.

(Decided March 21st, 1860.

The second exception of the defendant is abandoned, The third exception relates to the prayers offered on behalf of the defendant. Of the five instructions asked, the first three were granted, the fourth and fifth, as presented, were rejected, but the fourth, with a qualification, was granted. The second exception having been abandoned, the only point of the fourth prayer is, that from the facts enunciated in it the jury might find, that the payment made by the plaintiff was not in good faith, but in collusion with Tome. The argument urged in support of this prayer rests on this idea: that the judgment ought not to have been paid until after execution, and that having been paid without execution, the defendant is in nowise responsible to refund the amount. To this reasoning we do not assent, nor docs the law give it any support. It was the judgment which fixed the liability. Had Stephenson withheld payment until execution was levied, Creamer very reasonably might have complained of such unnecessary accumulation of costs. If there was no other reason to ratify the rejection of the defendant’s fifth prayer, the abandonment of his second exception in this court would be sufficient. The prayer, among other things, leaves it to the jury to find that Adams was not a creditor of either Stephenson or Creamer. The judgment in the attachment suit established the indebtedness of Stephenson, as garnishee, and precluded all further question in regard to the matter.

We do not perceive any valid objection .to the instruction given by the court. It fairly submitted the bona fides of the conduct of the plaintiff to the jury, omitting no fact important to the inquiry.

Judgment affirmed*