Fiske v. McGregory
34 N.H. 414
N.H.
1857
Check Treatment
Sawyer, J.

If it was competent for the plaintiff to prove by parol testimony that the defendant agreed, in consideration of the quitclaim from the plaintiff to him, to pay the mortgage debt, the evidence was sufficient for that purpose. That such agreement was made between these parties is fairly to be inferred from the circumstances of the case. The defendant agreed with the purchaser at the auction, Frederick Fiske, “ to buy his bid.” From this nothing more or less can be understood than that he agreed to stand in the place of the purchaser, and to assume the contract made by the purchaser, as his. The plaintiff, by giving the deed to the defendant instead of the purchaser at the auction, assented to the substitution, and there is clear evidence in the circumstances of the case from which a jury might infer that there was an agreement between these parties for a release from the plaintiff to the defendant, upon the same terms as had been agreed upon between the plaintiff and the purchaser at the auction. It thus became material for the plaintiff to show what that agreement was. Independent of the direct evidence introduced to show what the understanding was at the auction sale, it is *417clearly to be inferred from the circumstances that the purchaser was to pay the mortgage debt; otherwise, upon the plaintiff’s being compelled to pay his notes secured by the mortgage, out of other funds than the land itself, the purchaser would hold the whole estate free from the incumbrance, for a consideration paid by him equal to the estate, over and above the incumbrance. In this view the evidence objected to by the defendant, tending to show what the understanding at the auction sale was, was competent, as tending to show what in fact the agreement was between these parties. The plaintiff’s case, upon the evidence, was briefly this; that he and Frederick Fiske, having made an agreement that the plaintiff should convey to Fiske the land subject to the mortgage, and that Fiske should pay him therefor §50, and also should pay to Keyes the mortgage debt, so as to indemnify him against that, it was subsequently agreed between the defendant and Frederick Fiske, that the defendant should take the deed instead of Frederick Fiske, and should assume the contract with the plaintiff on Frederick Fiske’s part; to which the plaintiff assented, and on his part agreed to accept the defendant as the other party to the contract instead of Frederick Fiske, and that, in fulfillment of his part of the agreement, he had executed a release of the land to the defendant. The jury were fully warranted in finding, from the circumstances of the case, that such was the character of the transaction, and consequently the objection to the parol proof introduced of the understanding at the auction sale, and the exception that there was no sufficient evidence of an agreement by the defendant to pay the mortgage debt, were properly overruled.

The further question then arises, was it competent for the plaintiff to introduce parol evidence of such agreement ? It was objected by the defendant at the time that such proof was incompetent. If the ground of the objection be that the evidence was incompetent because the agreement is within the statute of frauds, it is clear the objection cannot be sustained. The 7th section of that statute (Revised Statutes, ch. 180,) forbids that any action shall be maintained upon any contract for the *418sale of lands, unless the agreement upon which such action is founded, or some memorandum thereof, is in writing, signed by the party to be charged, or by some other person thereunto lawfully authorized, by writing. The second clause of the 8th section provides that no action shall be brought to charge any person upon any special promise to answer for the debt of another, without such writing. These are the only provisions which can be supposed applicable to the case, but neither of them has any such application. This action is not brought to enforce a contract for the conveyance of lands, or to recover damages for the non-fulfillment of a contract, by which the party attempted to be charged agreed to convey lands, but to recover of the party receiving a conveyance the consideration agreed to be paid and performed for it. The contract on the part of the party agreeing to convey has been executed, and after such execution the contract is not within the 7th section, to enable him to avoid paying for the conveyance which he has received. Moore v. Ross, 11 N. H. 547. It is equally clear that it is not within the 8th section, upon the well settled principle that the promise to pay the debt of another, which by that section is required to be in writing, must be a promise to the creditor collateral to the original undertaking. Eastwood v. Kenyon, 11 Ad. & El. 446; Hargraves v. Parsons, 13 M. & W. 561; Johnson v. Gilbert, 4 Hill (N. Y.) 178; Proprietors of Locks v. Abbott, 14 N. H. 157.

This is an original undertaking by the defendant with the debtor to pay his debt, upon a consideration moving from the debtor himself, and to which the creditor — the holder of the mortgage — is not privy. It is not a promise to the creditor to pay the debt of his debtor.

If the ground of the objection taken at the trial is, that the agreement was reduced to writing, and that the parol evidence introduced was incompetent, as contradicting or varying the written contract, the objection, as resting upon this ground, is met by two distinct answers. In the first place, no agreement in writing appears in the case. An auctioneer is undoubtedly the *419agent of both parties — the buyer and seller — for the purpose of binding them to the contract of sale by his signature; but we are not aware of any authority for holding that a memorandum, made by an auctioneer’s clerk, without signature, is a contract in writing, binding upon either. If the memorandum in this case of itself is not such contract, it is no more so when taken in connection with the deed of the plaintiff. That was given in pursuance of the contract, and in fulfillment of it on his part, and in this case is no more to be considered as the contract reduced to writing, than in any other case of a deed given to convey land in execution of a previous agreement to convey.

In the next place, if the memorandum, in connection with the deed, were to be considered as written evidence of the agreement, it must be of the agreement between the plaintiff and Frederick Fiske, and not of that between these parties; and the rule which excludes parol testimony tending to contradict or vary the terms of a written contract, is applied only when the question arises between the parties to the written agreement. Third persons are not precluded from proving the truth, however contradictory to the written statements of others. 1 Greenl. Ev., sec. 279. The evidence tends to show that these parties entered into an agreement that the plaintiff should convey to the defendant in the same manner as he had agreed to convey to Frederick Fiske, and that the defendant should pay therefor in the same manner as Frederick Fiske had agreed to pay. The agreement of the defendant upon this evidence was, not to fulfill such agreement as Frederick Fiske had entered into, of which there might be evidence under the statute of frauds, but such as he had actually made, whether reduced to writing or not.

Upon any view of the case the evidence was competent, and there must be Judgment upon the verdict.