Robinson v. Jefferson

1 Del. Ch. 244 | New York Court of Chancery | 1823

Ridgely, Chancellor.

The paroi evidence offered to show the consideration of the bills in question is not ineon-. sistent with them. It neither contradicts nor impugns them, but leaves them as they were originally made, Nevertheless, the evidence shows that at the time they were executed an agreement was made that Paine should assign, or cause to be assigned, certain rights in a patent obtained for sawing shingles, and that such assignment was the consideration of the bills. Ho consideration is expressed on the face of them. The bill of complaint charges all the circumstances, and shows that a fraud was practiced upon Robinson by Paine.

Under these circumstances, the paroi evidence is competent to prove that the complainant obtained no consideration, and that the whole was an imposition on the part of Paine.

In Villers vs. Beaumont, Dyer, 146, a. it was adjudged that where no consideration is expressed, a consideration may be averred outside of the deed. And in Shove vs. Pincke, 5 T. R. 129, Lord Kenyon said that a fact not stated in a deed may he alleged as a consideration. In Peacock vs. Monk, 1 Ves. Sr. 128, Lord Hardwicke admitted, that where no consideration is mentioned you may inquire into the consideration. In Pitcairne vs. Ogbourne, 2 Ves. Sr. 375, paroi evidence was allowed to show that though a bond, on a marriage, was for £150, per annum, yet the agreement was for £100. And in the King vs. Scammander, 3 T. R. 475, it was held in the King’s Bench, that other considerations might be proved than those in a deed. And so, if my memory does not deceive me, it was ruled in the Supreme Court of Pennsylvania, when Mr. McKean was Chief Justice. In Osmond vs. Fitzroy, 3 P. Wms. 129, cited by the complainant’s counsel, it was considered that if a bond be insisted on, to have been given for a consideration, where it appears there was none, equity will relieve against it.

Unless paroi proof be admitted in such cases fraud cannot be detected when it does not appear on the writing. Here, the hills are not denied. They are admitted by the complainant. The testimony of Kollock and Cullen clearly shows their execution, and that there is not a word upon them that the parties did not intend should be there. But the same testimony shows that these bills were made for a supposed consideration, and that Paine obtained them through fraud and imposition. He made an agreement which he never fulfilled,—which was distinct and separate from the bills, and only connected with them to show that it was the consideration upon which the bills were given. This is not like the case of Lord Irnham vs. Child, 1 Bro. Ch. Rep. 92, where the agreement attempted to be set up, contradicted the deed. And the case of Lord Portmore vs. Morris, 2 Bro. Ch. Rep. 219, was precisely the same as Irnham vs. Child. The paroi evidence was designed to vary the written agreement. I do not exactly perceive the bearing of Conolly vs. Lord How, 5 Ves. Jr. 700, on this case. There, the question was whether the declarations of a party to a deed should be read in evidence, but that is nothing like this case. The declarations in support of the deed, made previous to its execution, were read; those subsequent and impeaching it were rejected. As to Brydges vs. the Duchess of Chandos, 2 Ves. Jr. 422, it was a great question on the revocation of a will, and how far that might be by subsequent deeds; and also whether a particular estate remaining unsold was to be considered real or personal. Evidence was offered of some circumstances,—of some facts,—in writing; but the Chancellor rejected it; not because it was parol,—for it was not,— but because he could take no notice of the circumstances as operating on the question before him. That case has no application.

It has been urged that the defendant, Waples, has denied the allegations in this bill; and that no decree for relief can be made without the testimony of two witnesses against the answer, or of one witness with strongly corroborating circumstances. But the answer does not, and cannot, positively deny the allegations of the bill; for Waples was not a party to, nor concerned in, the original transactions, and had no immediate knowledge of them. He states new and distinct facts, not originally existing, and which are not supported by any proof. The allegations of the bill, as to the specialties and the consideration, are supported by the testimony of Kollock and Cullen ; and there is no plain and positive denial of any assertion in the bill necessary to the complainant’s case. Wap les, by his answer, certainly makes a new case ; but, in my judgment, all the testimony and circumstances in the cause tend clearly to its contradiction.

It should be remarked that these bills are not assigned according to the form of the Act of Assembly. The assignments are, therefore, equitable only; and the bills are liable in the hands of "the assignee to all the equities to which they were liable in the hands of the obligee. But, even if they had been assigned in the manner prescribed by the Act of Assembly, the assignee would have taken them subject to the same objections which might have been made against them by the obligor in the hands of the obligee. This is the well known and established law, and the assignee, before he takes the assignment of a specialty, ought to inquire whether it is liable to any plea, discount, or impeachment whatever. Such is the law in Pennsylvania, 1 Dall. R. 23 : 2 Binn. R. 154, 165, 166, 168.

Let a decree be entered for a perpetual injunction, according to the prayer of the bill.

The Chancellor’s decree was affirmed, on appeal, by the High Court of Errors and Appeals, at the June T. 1827.