Norton v. Downer

31 Vt. 407 | Vt. | 1858

Poland, J.

The meaning of the contract of March 11,1854, with the explanations afforded by the facts which the exceptions state were conceded, does not seem to be at all doubtful, so as to make parol evidence necessary, or even admissible, to control it. It seems that Baxter and Downer were joint owners of certain demands against the estate of Belknap, upon which Hubbard was administrator. They had not received any dividends, but expected to receive at least twenty-five per'cent, and hoped to receive still more, but the amount the estate would pay was doubtful.

Hubbard, the administrator, was willing to pay over the sum of four thousand dollars, but desired security for its repayment in case it should turn out that they were not entitled to a dividend to that extent, and for that purpose a note of four thousand dollars was executed, signed by Downer, made payable to Baxter, and by Baxter indorsed to Hubbard.

The contract of March 11, 1854, recites that it was made contemporaneously with this note, and that the note was given for the money so received from Hubbard; that the money had been divided between Baxter and Downer upon the demands against the estate of Belknap, and that Baxter had taken Downer’s two notes of one thousand dollars each, for the half of the money he had received.

The written agreement further provides, that in case said four thousand dollars is retained to be applied on said demands against Belknap’s estate (that is, if they are not obliged to pay the money back to Hubbard), then the four thousand dollar note signed by Downer, and also the two notes of one thousand dollars each, which Downer had given to Baxter for his half of the money, were to be surrendered to Downer. In short, if they were entitled to keep the money, all the notes which had been given were to be surrendered,-the money was already divided, and the whole matter fully executed.

From this it is apparent that in case the money had to be repaid to Hubbard, in some way, it was to be repaid jointly. The contract does not in terms provide what is to be done with the notes in case the four thousand dollars has to be repaid to Hubbard, or by whom the four thousand dollar note shall be paid, but taking the whole agreement together, the intention of the parties is plain. It is provided in terms in the contract, that the four thousand dollar note is “ not to be paid by'Downer but it is said' that this is contradictory and repugnant to the whole purpose and intent of the contract, and that it must he understood that the parties intended by this, that the note was not to be paid by Downer, if they were entitled to retain the money as dividends. But we think the parties must have intended that, as between Baxter and Downer, Downer was not to pay the note in any event. If they kept the money, this note and the two one thousand dollar notes were to be surrendered to him, and if they were called on to repay the money to Hubbard, then Baxter relied on the two one thousand dollar notes he had taken of Downer, to recall from Downer the half of the money he had received.

It is argued by the plaintiff, that although by the original agreement it was understood that this note was to be paid by Baxter, or Baxter and Downer jointly, it was competent for tho parties, by a subsequent arrangement, to give the paper, m fací, the same legal character it bore upon its face, and to make Downer in fact the primary and principal debtor, and Baxter the mere indorser and surety for Downer, and thus enable him, in case he was compelled to pay the note, to maintain an action against Downer upon it. We are inclined to think that there is no substantial objection id law to giving this effect to such a subsequent arrangement between the parties, hut the case does not appear by tho exceptions to have been put upon auy such ground at all, but wholly upon the original relation between Baxter and Downer as to this note, when the original note was given, nor does it appear that any evidence was given of any alteration of the relation of the parties by any subsequent agreement, unless it can be inferred from the items of the settlement of March 23, 1855. But it is impossible for us to say from those items, that such a change was thereby produced, aud it was submitted to the jury as evidence ouly of the original agreement of the parties.

The plaintiff put Kis ease upon the ground that Downer had received a large amount of moneys belonging to Belknap’s estate, of which Baxter had not received his share, and that this four thousand dollars received of Hubbard was wholly for Baxter, and that it was understood that if the note executed for it had to be paid at all, it was to be paid by Downer, and that Baxter indorsed the note merely as a surety or accommodation indorser for Downer, and that this money when received, was understood to be Baxter’s money, and that he loaned two thousand dollars of it to Downer, for which Downer executed to him the two one thousand dollar notes. All this the plaintiff was allowed to prove by parol evidence against the objection of the defendant, and the charge of the court to the jury could apply with propriety only to the evidence to'prove the relations of the parties upon the original note, for which the note in suit was substituted.

It seems manifest to us, that the court erred in admitting the parol evidence to show the contract upon which this note was given, when it was conceded that the contract was evidenced by a written instrument, and the parol proof received, wo think, proved a relation or agreement totally different from that shown by the written agreement.

The judgment of the county court is therefore reversed, and a now trial granted.