Bean v. Dolliff , 1877 Me. LEXIS 39 ( 1877 )

Danforth, J.

This case was referred to the presiding justice with the right to except. It is a familiar principle of law founded upon the provisions of R. S. c. 77, § 21, that the party excepting must show that he is aggrieved by the ruling excepted to, or his exceptions will not be sustained. In this case there is an objection to the admission of the plaintiff’s disclosure and “any evidence tending to show any agreement different from what that due-bill purports to be.” This objection is too indefinite as it covers both that which may and that which may not be admissible. Testimony tending to show that the “due-bill” does not show the'real contract entered into by the parties at the time, would perhaps bo inadmissible. But it would be entirely competent for the parties to enter into a subsequent and independent contract to be proved by oral testimony different from that shown by the note and by which its terms might be modified, or its obligation discharged. If, then, this objection were overruled it does not appear that the objecting party has been aggrieved.

In the argument on behalf of the plaintiff it is claimed that, “when an agreement is reduced to writing, the writing must be taken as conclusive evidence of the understanding of the parties,” that “no evidence of a parol agreement that a note absolute should be paid only upon a certain contingency,” or “should be given up in an event which has happened,” is admissible.

These several propositions are undoubtedly good law and well sustained by the authorities. But no specific testimony has been alluded to as received in violation of these principles, certainly none as having any bearing upon the judgment of the court.

The ruling of the court was that such testimony as might be offered would be heard and its legitimacy subsequently considered. It follows that, as under the objection so under the ruling, so far as relates to the reception of testimony, or the testimony received, the plaintiff has failed to show any ground of complaint.

The final ruling excepted to is the order that judgment be rendered for the defendant “upon the foregoing testimony.” Precisely what view was taken of the “foregoing testimony” or whether all or a part was considered as legitimate does not appear. Nor perhaps is it necessary that it should. There is no material conflict of evidence, nor is there room for any serious doubt as to the facts. Whatever might be the result sif we should find any uncertainty as to the facts, it is very clear if we find from competent testimony undisputed facts sufficient to authorize the order of the court, the exceptions must be overruled. tJpon this point we apprehend there was no occasion to consider how far the defendant might have a defense to the note in consequence of any agreement with the plaintiff that its payment should depend upon any contingency whatever.

The true question to be considered is whether the plaintiff has any such title to, or interest in the note, as will enable him to maintain the action for his own benefit; for it seems that in prosecuting the action he is acting for himself and not in behalf of any other person.

It appears from the disclosure of the plaintiff that on the day of the date of the note he had in his hands the sum of two hundred dollars, which was the property of Wm. Gr. Andrews, and upon which he had a lien to secure him against the claim of one Hill. On that day, at the request of Andrews, he paid the money to the defendant and took for it the note in suit, which he was to hold as security for the same claim for which he held the money. The note, then, took the place of the money, and was holden by the plaintiff for the same purpose and subject to the same claim on the part of Andrews. Subsequently, but on the same day, the claim of Hill was settled by Andrews, and thereby the note, as well as the money represented by it, was released from any lien which the plaintiff had upon it and it became the sole property of Andrews. The plaintiff having paid over the money at Andrews’ request and as his agent could no longer be liable to him for it, but only for that which he received in its place. The defendant, knowing that he was receiving the money of Andrews and that the plaintiff was acting in the transaction as an agent, would be liable to Andrews on the note, though it was made payable to the agent. This would seem to leave no ground upon which the plaintiff can recover, without resting upon any disputed or uncertain evidence.

Nor does the plaintiff gain any further lien upon the note by virtue of the judgments, in .the trustee suits, offered in evidence. He had paid over the money before the service of the writs upon him; and the possession of the note, it being but a chose in action, would furnish no ground for charging him as trustee. If, therefore, he was charged for the money or note, it must have been for the want of a disclosure in accordance with the facts.

The suggestion that the note was given to aid Andrews in the fraudulent concealment of his property from his creditoi’s, cannot aid this plaintiff in sustaining his action. It may be that the defendant did knowingly render aid to Andrews for the purpose indicated, and that he may be liable under the statute to a creditor for so doing. But this case is not founded upon any such claim. Besides, if it is probable that the defendant is thus guilty, it is certain that the plaintiff is in no better condition. By his own admission it appears that when he paid over the money at the request of Andrews he was expressly notified of the illegal purpose of Andrews and clearly understood that the change was made to hinder, delay or defraud creditors; and knowing this, without any benefit to himself, he not only assented to, but was an actor in accomplishing the change. The inference would seem to be that the note was the result of a contract entered into for an illegal purpose, and that the judgment of the court might be sustained upon that ground. Exceptions overruled.

Appleton, C. J., Dickerson, Barrows, 'Virgin and Libbet, JJ., concurred.