Rowell v. Dunwoodie

69 Vt. 111 | Vt. | 1896

Tyler, J.

The plaintiff claims to recover, in the common counts in assumpsit, upon a written agreement, signed by the defendant, which is as follows :

“I, M. Jennie Dunwoodie, of Montpelier, Vermont, named as residuary legatee in the will of Joseph B. Rowell, late of Montpelier aforesaid, now pending for probating in the probate court for the district of Washington, Vermont, hereby agree to pay I. H. P. Rowell of Montpelier, Vermont, two notes he holds against the said Joseph B. Rowell, with the interest thereon, upon the following conditions:

“1st. The said Rowell shall withdraw from opposing the probating of said will and allow the same to be probated.

“2nd. That the estate shall be solvent and that sufficient shall be realized therefrom to pay all legacies and debts.

“3d. In case no appeal is taken by anyone interested in said estate as a creditor or otherwise.

“In ca’se an appeal shall be taken, no liability shall attach to the said M. Jennie Dunwoodie until such appeal is determined; and if such determination shall be adverse to her, then said M. Jennie Dunwoodie shall be discharged from all liability under this agreement.

“The said Rowell has an account for legal services and costs against Joseph B. Rowell, for one-half said amount, estimated to be from twenty to thirty dollars — which is to be paid, subject to the above conditions, by the said M. Jennie Dunwoodie; and the said Rowell has no other claim against said estate.”

The plaintiff’s evidence tended to show that all the conditions of the agreement had been fulfilled, and the defendant made no claim that the 1st, 2nd and 3rd conditions had not been performed. The question is whether the agreement satisfies the statute which requires that a promise to answer for the debt of another shall be in writing.

If the promise had been to pay a specific sum of money, as $142.99 — the face of the two notes — no question could be raised but that the debt was definitely described. But now it is contended that the contract is partly in writing and partly dependent upon parol evidence, and therefore within the statute.

The rule of law is that enough should appear in the writing to show that a contract has been concluded which is legally binding upon the party sought to be charged; that the written note or memorandum must, either by its own language or by reference to something else, contain such a description of the contract actually made as shall obviate the necessity of resorting to parol evidence in order to supply any term of the contract essential to give it validity. Ide & Smith v. Stanton, 15 Vt. 685.

The plaintiff offered in evidence two notes, signed by the testator, which were excluded. If the writing had been .indefinite, so that it might have applied to different notes, the ruling of the court. excluding them would have been correct. But it appears by the writing that these two notes and the account were all the claims that the plaintiff had against the estate, so that their identity was established by their production, and parol evidence was necessary only for the purpose of fixing the amount due upon them. So we are not required to go beyond the rule in Ide & Smith v. Stanton to inquire how far parol evidence might be resorted to in order to identify the subject matter of the contract.

Upon proof that the plaintiff had complied with the terms of the agreement and the admission of the notes in evidence he would have been entitled to recover in general assumpsit. A case would have been made where nothing remained for the defendant to do but to pay over the amount due upon the notes.

The defendant’s promise was not collateral to that of the testator. It was absolute upon the plaintiff’s performance of the conditions, and was obviously for the defendant’s benefit, she being the residuary legatee under the will.

The defendant makes the further point that the verdict and judgment for the plaintiff to recover the amount of his account preclude him from a recovery upon the notes. This cannot be maintained. The plaintiff's exception to the ruling of the court excluding the notes as evidence saved his right in respect to a recovery of the amount due upon them.

Judgment reversed and cause remanded.