Hodges v. Strong , 10 Vt. 247 ( 1838 )

The opinion of the Court was delivered by

Collamer, J.

The plaintiff claims topecover cejrtai^ rqoney, by him paid on a note to Page, signed by the plaintiff and Royce, jointly. On the trial, the court admitted paro proof to show the consideration, object and purpose §f this note, and to this tlxe defendant excepted.

A writing, and especially a deed, cannot, by parol, be extended to matters not covered by the .writing, but the idem tity of the subject matter of a deed generally, perhaps always, rests in parol. Whether certain land is párt of what is conveyed by a deed, rests in pais, and is always a question to the jury. In this case, the bond secured the plaintiff against a several debt, If by him contracted in the business of the firm. Now had he contracted such a debt and paid it, he must, in an action on this bond, have proved not only that he contracted such a debt, and paid it, but must have been permitted to prove, by parol, that it was in the business of the co-partnership. There was, then, no error in the admission of the parol proof.

The evidence showed that this debt was contracted jointiy for law books, in contemplation of a co-partnership which had been concluded on, but the written articles were not drawn until the next day. For the use and benefit of this co-partnership the books were purchased and used, during its continuance, and, on its dissolution, they passed wholly to Royce, with the other effects, and were used by him until his decease. Was this debt covered by this bond ? This is a question of law, on the construction of the instrument. The condition of the bond is, that the plaintiff is to be indemnified for debts contracted, not merely by the parties as co-partners, but jointly or severally in any way, in the prosecution of their business. This debt was for books, for the firm, and used by them. The consideration of the debt, then, did pass into the business; as much as if it had been money, which went afterwards to pay sheriff’s and clerk’s bills. The cotemporaneous acts of the partners show that this was viewed as co-partnership property. Upon the dissolution, the books were not divided, but passed as a part of the effects to Royce, who always retained them. The bond does not confine the indemnity to any particular time, when the debt must have been contracted, but merely to the nature of the debt, that is, in their business. It is, therefore, immaterial whether it was before or during the existence of the different written articles. Again, the bond secures the plaintiff fin-all debts contracted jointly or severally for books, &c., in their business. This was contracted jointly for books, in their business, and is within the very words of the contract. Indeed, as we hear of no other outstanding debt for books, it is extremely probable these words were introduced to cover this particular debt. We think this debt clearly within the provisions, intent and meaning of this bond.

Judgment affirmed.

Royce, J., being one of the administrators of the estate of Rodney C. Royce, deceased, did not sit in this cause.