1 Port. 359 | Ala. | 1835
This cause is brought up by writ of error, to a decree of a chancellor dissolving an injunction and dismissing a bill, filed by the plaintiff in error against the defendants, who were ad-
The bill charges, that before the signing by him of the contract above mentioned, it' was understood and agreed between the said Hall and the said Dameron and Williams and the said plaintiif, that in case the said Dameron and Williams should be unable to build and finish said stores, according to the agreement, that then, and in that case, he should complete and finish said stores himself, and the said Hall should pay unto him the said sum of three thousand eight hundred and jifty dollars, after deducting therefrom such damages as the said Hall might sustain, in case the said build* , ings should not be completed by the said first of November, 1821. The bill further,charges, that the said Dameron and Williams failing to complete the said buildings, assigned the*
Having thus stated the substance of the bill, answer, and proofs, so far as I consider necessary to a decision of the case, I will proceed to examine the questions belonging to it.
The first which presents itself is, whether the contract set up by the complainant, even if proved, can be regarded, on account of its supposed effect, to vary or contradict'the written instrument, which was signed by the parties to it. The general rule is well established, that a written contract cannot be varied, contradicted, or even explained by'parol evidence. But if any contemporaneous contract be made, even in some sense on the same subject matter, which can be so separated from the written one, as that it will not appear to have been
The next question to be considered is, whether the proof sufficiently establishes this parol contract. I have already said that there is but one positive witness to sustain it; and I have said also, that no great stress can be laid upon the circumstantial evidence adduced. The general rule which has been invoked upon this occasion, that there must be two positive witnesses, or one, and strong corroborating circumstances, I'do not think applies to this case. The rule is not inexorable, but yields to such reasonable considerations as show the impropriety of its application. It is founded on the equitable principle, that evidence should be weighed, and the preponderance given not to number merely, but to the greatest weight of the testimony. The answer of a defendant, who is made a competent witness by the complainant, is equal to another competent witness ; and without more, the cause is in equilibrio, and the maxim applies, melior est conditio de-fendentis. It will therefore require another, or what is equivalent thereto, a powerful array of coadjuvant circumstances to turn the balance. Suppose, however, that from the situation which a defendant in chancery has occupied in relation to the matter in controversy, he is not only not alleged to know, but evidently can know nothing certainly of the matter, which he. nevertheless formally denies. Is it not reasonable that the answer of such a one, should be less weighty in the balances of justice, than the positive asseverations of a disin terested witness ? I conceive so on principle, and believe the ’ authorities will sustain the position. The case of an executor or administrator defendant, is considered as an exception
The question of jurisdiction was raised in argument, and deserves to be considered. I understood the objection to be founded upon the supposition that there was an ample opportunity for the complainant to have obtained the benefit of his demand as now sought, by pleading a set off to the action brought against him by the defendant’s intestate, Hall; judgment on which he now seeks to render fruitless by' his bill. It has been often decided that a party is not compellable to plead what is strictly a set oft’ and not a payment, in’, any case. It is optional with him to do so r not. In this case a separate action was resorted to by the complainant, which the defendants admit was abated at their instance, owing to the insolvency of their intestate’s estate. The only remedy which remained to the complainant was before the commissioners appointed to allow the demands against the insolvent estate: but this remedy was clearly inadequate. Immediately on the declaration of insolvency, it became essential to the interest of the complainant, that he should be allowed to setoff against the judgment against him, an equal amount of the debt due'from the intestate to him. This court has decided in the case of Penine, and Warren1 s adm’rs., July term, 1830, that in such case a set off is allowable. Then the jurisdiction is entertained properly, as it is the only way of affording the relief to. which the party is evidently entitled. The only adequate remedy is by injunction to the extent of the complainant’s demand, and further relief we do not think it competent to supply; as to the balance of his demand he is remitted to such remedy as the law may afford him. The relief to the extent just intimated is clearly allowable, unless the plea of the statute of non-claim, or forfeiture for failing So present it to the administrators* within eighteen months af
From the best consideration which we have been able to give the cause, our conclusion is, that the decree below is erroneous, and should thereforé be reversed — that a decree be entered restoring and perpetuating the injunction, and that complainant recover his costs, &c.
3 Bibb, 466, 539, 143.
Gallis. 498.