Wells v. Baldwin

18 Johns. 45 | N.Y. Sup. Ct. | 1820

Spencer, Ch. J.

delivered the opinion of the Court. If the facts set forth in the plea demurred to, really exist, L regret to say, that a court of law is not competent to afford the defendant relief.

In the case of Mease v. Mease, [Cowp. 47.) the action was debt on a bond conditioned for payment at a certain day; plea, that it was given as an indemnity to the plaintiff’s testator against another bond, and plaintiff not damnified, and ondemurrer to this plea, the question was, whether the agreement stated in the plea could be given in evidence against the express condition of the bond. It was argued for the plaintiff, that no parol evidence could be received, to abate, qr extend a bond or deed. Lord Mansfield pronounced the plea to be clearly bad, and judgment was given for the plaintiff. In Thompson v. Ketchum, (8 Johns. Rep. 192.) this Court decided, that where a note had been given in Jamaica, promising to pay the plaintiff a sum of money, evidence was inadmissible to show an agreement, that the money was tobe paid on the arrival of the parties in New-York ; on the ground that it was against an established rule of law to vary the operation of a writing by parol proof. To this point are, also, Cro. Eliz. 697. and Meres and Ansel, (3 Wils. Rep. 275.) and many other cases. Had the defendant entered into a bond without a condition, and taken from the plaintiff a defeasance in a separate instrument, referring to the boad, making it inoperative, if the plaintiff did not perform the agreement to clear the twenty acres of land in a particular way, and had he failed to do so, then the defeasance might have been pleaded; but here the bond is with a condition, that the defendant shall pay certain sums of money at fixed days, and it would be contradicting and impugning the bond, to admit proof, that instead of paying the money stipulated in the condition, the plaintiff was not to be paid, unless he cleared certain lands in a particular manner. It would be against the strong current of authority to admit such a defence.

Judgment for the plaintiff, with leave to the defendant to amend, on payment of costs.