Pierson v. McCahill

21 Cal. 122 | Cal. | 1862

Cope, J. delivered the opinion of the Court

Field, C. J. and Norton, J. concurring.

This is an action upon two accounts, one in favor of Taaffe, McCahill & Co., and the other in favor of Canfield, Pierson & Co., for goods, wares, and merchandise sold and delivered. The plaintiff sues as assignee of these accounts, and the defendant sets up in defense a composition between him and the assignors of the plaintiff, by which it was agreed that upon the payment of fifty per cent, of the amount due he should be discharged from liability. He avers performance on his part, except as to a small balance upon the account of Taaffe, McCahill & Co., and as to that avers that it has been attached in his hands at the suit of a creditor of that firm. On the trial of the case, the defendant gave in evidence a written agreement between him and his creditors, transferring to a trustee certain property, from the sales of which he was to pay the amount agreed on, but containing no provision for a discharge. Parol evidence was introduced to show that this provision was omitted by mistake, which evidence was objected to as improper, and its admission is assigned as error.

It is well settled that verbal evidence is inadmissible to contradict or vary a written contract, but this rule is inapplicable where a mistake has been made, and the object is to correct it. In this case, however, the mistake is not averred in the answer, and the agreement having been given in evidence without regard to the mistake, oral testimony was not admissible to vary it by the incorporation of a new term. There is no doubt of the power of the Court to reform the instrument, but this could only be done upon a direct application, and the matter should have been stated in the answer as a distinct ground of relief. Until reformed, the instrument must stand as the contract of the parties, and it was error to allow the defendant to prove a different contract, or to give evidence of an intention different from that actually expressed. The rule upon the subject is universal and inflexible, and until the contract has been reformed so as to express the intention of the parties, the defendant cannot claim the benefit of that intention.

A point is made as to the validity of the agreement as stated in the answer, it being contended that the agreement as therein set forth is without consideration and void. The answer states an agreement to accept fifty per cent, of the amount due, etc., and the authorities are unanimous that as between a debtor and a single creditor such an agreement is invalid.. Where, however, several creditors are parties to the agreement the rule is different, the engagement of one being a sufficient consideration for the engagement of the others. This is the only consideration appearing in the answer, but the agreement given in evidence shows an additional consideration in the transfer of property for the payment of the amount. As it will be necessary to amend the, answer before the case is retried, the foundation for the objection made, even if it were tenable, will be removed.

The only further point necessary to be noticed is in regard to the attachment, which we think is not so pleaded as to be effectual for any purpose. It is averred that an attachment was issued and levied, but beyond this nothing appears in relation to the attachment suit, except the names of the parties and the Court in which it was brought. The nature of the suit is not stated, nor is it alleged that the suit is still pending and undetermined, and the facts disclosed are insufficient to prevent a recovery. In no event was the defendant entitled to a judgment, for the only effect which the attachment could have was' to suspend the proceedings, and whether well pleaded or not it was erroneous to treat it as a bar.

The judgment is reversed and the cause remanded.