Gilson v. Gilson , 16 Vt. 464 ( 1844 )

The opinion of the court was delivered by

Hebard, J.

The note, upon which the present action is predicated, was given by the defendant to the plaintiff’s intestate, and upon trial, under the general issue, the defendant gave evidence which tended to prove, that, some years before the giving this note, he had agreed with the intestate .to pay to the heirs of his father’s estate, of which the intestate was the administratrix, the several distributive shares; and also, he gave in evidence a paper signed by the plaintiff’s intestate, by which she agreed, that, when .those shares were paid, this note should be given up. All this was objected to by the plaintiff, because it did not tend to prove the issue. That, this agreement was without consideration forms no objection to it, after it has been performed by the other party. This agreement was not in the nature of accord and satisfaction, so as to require it to be pleaded. It was strictly and technically a payment, only that it was stipulated to be paid to other persons. So that the parol agreement, before the note was given, together with the written acknowledgment, after the date of the note, of such understanding and agreement, is proper evidence under the general issue. That payment was accepted at a different time, or place, or in a different manner, from that stipulated in the note, does not alter the fact; it is payment still.

There -was a further objection to the paper, growing out of its •ambiguity. If the paper was so ambiguous and uncertain, that, with a fair and reasonable intendment, the meaning could not be ascertained, it ought to have been rejected. To give an interpretation to a transaction, it is to be understood with reference to all matters .connected with it. If in a writing some words are so spelled, that, taken by themselves, the meaning would be uncertain, still if, by •taking the whole writing together, the meaning is obyious, it will •not be rejected for that. This paper, viewed in this light, is no way ambiguous, nor is its meaning obscure.

The plaintiff also objected to. the receipts of the several heirs, as being no evidence of payment. We also consider this objection without foundation. The several heirs, for the purpose of receiving those payments, were quasi agents of the said Lucy, and, by an arrangement between her and the defendant, those payments were to answer a double purpose, — that of extinguishing their claims upon her for their distributive shares, and that of liquidating the note which the defendant had given the said Lucy, for the property which she held, and out of which those shares were to be paid. Under this arrangement, the receipts were just as good evidence against the said Lucy, in a suit between her and the defendant upon this note, as they would b& for her, in a suit between her and the heirs for their distributive shares.

But there is another objection, that we consider more formidable. For the purpose of proving the payment of the share belonging to Mrs. Keyes, one of the heirs, the court permitted the defendant to prove the sayings of Mrs. Keyes, during the lifetime of her husband, in which she admitted that she was boarding out her share with the defendant. This is claimed to be admissible on the ground that she was the agent of her husband, and that the admissions were made during the execution of her agency. To establish this view, an important fact is assumed without proof, — the agency of the wife. The case finds that she was boarding with the defendant, by the consent of her husband ; but it does not appear that he consented or understood that he was thus receiving her share in her father’s estate. That such was his understanding cannot be presumed, for he had-no legal claim upon the defendant, nor does it appear, that Mr. Keyes or his wife knew of the arrangement between the defendant and the said Lucy, by which the defendant was to pay these shares. The testimony tended to prove that Mrs. Keyes was boarding with the defendant with her husband’s consent. Upon what terms or fior what purpose he consented does not appear. He might have regarded it as a gratuity, or he might have made provision for the payment in some other way. As the admissions of Mrs. Keyes were improperly admitted, the judgment of th.e county court is, for that reason, reversed.