Paget v. Cook ( 1861 )

Merrick, J.

1. It became material upon the trial to ascertain whether Howard, when he purchased the right and interest of the plaintiff in the property and assets belonging to the firm of J. D. Eussell & Co., agreed and promised to indemnify and save him harmless from their outstanding debts. To prove that he did enter into such engagement, and that it constituted in part the consideration of the sale, the plaintiff offered to introduce certain paroi evidence tending to establish that fact. The defendant objected to its admission on the ground that the contract of the parties was in writing, and could not be varied or controlled by an oral promise. This is a correct statement of the familiar and established rule in the law of evidence upon the subject. But in all the proofs before the court there was, when the objection was made, no occasion for its application. The only papers which had been read to the jury were the bill of sale and the bond and promissory note of Howard given to the plaintiff. Neither of them purports to be a statement of the terms and provisions of the contract of sale. The paroi evidence which was offered by the plaintiff was not intended, nor did it have any tendency, to vary, control or affect the contract set forth in either of those papers. There was another and a different ob-' ject to which he desired to have it applied. The controversy between the parties related to the consideration upon which the sale of the plaintiff’s right and interest in the property and assets of Russell & Co. was made. He claimed that the consideration consisted in part of the promise and engagement of Howard to indemnify and save him harmless from their outstanding debts. And he sought to introduce the proposed evidence for the purpose of establishing the truth of that proposition as a fact. He had an undoubted right to prove it by any competent evidence; and as that which he offered did not bear upon the written instruments in the case at all, and of course could not, if admitted, control or vary anything contained in them, and was in all other respects competent, the ruling of the court in disallowing the objection made by the defendant was correct.

2. It was further claimed by the plaintiff that, before he was arrested and imprisoned on the execution in favor of Cochrane against himself and J. D. Russell, it had been paid in full by the new firm of Russell & Co., and that this was well known to the defendant, both when he procured an assignment to be made of it to himself and when he caused the plaintiff to be arrested upon it. To prove that he had such knowledge, the plaintiff, assuming that the fact of- payment as alleged was satisfactorily shown by the proofs adduced, but not reported in the bill of exceptions, offered to introduce evidence of what was said in conversation between him and Russell, for the purpose of showing that Howard, in buying out the plaintiff’s interest in said firm, was acting in fact as his agent and had authority to bind him by a promise of indemnity against their outstanding debts. The admission of this evidence was objected to on the alleged ground that its effect was to vary or control the written contract or agreement of the parties. But this was not the purpose for which it was offered: nor could it, if received, have had any such effect. It was offered because the fact, if established by it, would have some tendency to show that the defendant must have known of the payment of said execution if it had been made as was alleged. For if he availed himself of the sale through the agency of Howard, and thereby became a partner in the new firm of Russell & Co., he would, in the ordinary course of business, become conversant with their affairs, and therefore would probably have known of the payment and discharge of the execution. Especially would he be likely to have such knowledge concerning this particular transaction, in relation to which he' had, by a special agreement of his own, assumed an important personal responsibility. The conversation with Russell upon this subject was therefore admissible. The testimony offered had nothing to do with any written instrument in the case,, or with any bargain made by the parties in the purchase and sale of the plaintiff’s interest in the property and assets of the old firm of Russell & Co.; but, being competent for the purpose for which it was offered, the plaintiff was entitled to the benefit of it. The objection of the defendant to its admission was therefore rightly overruled.

Exceptions overruled.