54 Vt. 677 | Vt. | 1881
The opinion of the court was delivered by
I. This is a petition to foreclose a mortgage. Its execution, with that of the notes secured by it, is admitted. The notes were given for the balance due, upon the settlement of a very large deal between the parties, the amount of which was doubtful. The defendants claim that, at the time of the settlement, the defendant, Hazen Campbell, the maker of the notes, had large claims against Bartholomew, the orator’s intestate, for which no credit had been given him in the settlement: that it was the intention that said notes should have been given for the sum due upon the settlement, after the amount of said claims had been adjusted and applied upon the debts due said Bartholomew; but that being unable to ascertain the exact sum due, it was agreed that there should be an after-settlement, and a correcting of the same. Bartholomew died ; the claims were presented against his estate, and passed into judgment, and the defendants insist in their answer that said judgment should, with other claims, be applied upon the amount due upon the orator’s notes, and the orator makes no objection to such application. The defendants, however, insisted before the master, that the judgment should not be applied unless their other claims were allowed. The court think that the application does not depend upon the allowance of other distinct and independent items, but upon the rights of the parties in re
II. To support the claim made by the defendants in their cross-bill, that a contract was made by them with Bartholomew, Charles E. Campbell was offered as a witness to prove that a short time before the deed to Barron he made a contract with Bartholomew, similar in its terms to the one they claimed Barron made with Bartholomew. This testimony was offered for the purpose of showing the “ nature and extent of the contract with Barron, and whether the same was duly carried out.” The master excluded it. That Bartholomew agreed to make a contract with Campbell was not evidence that he subsequently made a like one with Barron. It was a collateral fact wholly immaterial and evidence of it properly excluded. It is therefore, unnecessary, to discuss the question of the competency of Campbell as a witness.
The decree of the Court of Chancery is affirmed, and cause remanded.