Morse v. Low , 44 Vt. 561 ( 1872 )

The opinion of the court was delivered by

Ross, J.

I. The principle that a written instrument cannot be enlarged, varied, or contradicted by parol testimony is too elementary and too well established to require the support of authorities. The evidence offered by the intestate estate, and received by the commissioner against the objection of the testate estate, and from which the commissioner has found that it was the understanding, at the time the note was executed, that the note given by the intestate to the testator was never to be paid, except the interest, if the testator should need and call for it during his lifetime, directly varied and did away with the material parts of the note. It reduced the note from an absolute promise to pay five hundred dollars with the interest annually, to a conditional promise to pay some part of the interest only, if the testator should require it for his own support, or for the support of any one dependent on him, and should call for it in his lifetime , and from a promise to pay the testator or bearer, to a promise to pay, upon a contingency, the testator alone. In short, it entirely destroys the note as such. We know of no authority, have been cited to none, for thus varying, or rather abrogating a written contract by parol evidence. The books are full of authorities against the admissibility of such testimony. We do not think this result would have varied if the case found — which it does not — that this arrangement was entered into subsequently to the loan of the money and execution of the note. It would then become an un-executed promise of the testator to make a gift to the intestate of the principal of the note, and whatever interest remained uncollected at the decease of the testator, which cannot be upheld at law or in equity. There is no pretence of any consideration for the promise. Without reference to whether Mrs. Low could be a witness in the case, the plaintiff is entitled to recover the amount of the note and interest.

II. The commissioner finds, if Mrs. Low’s evidence is admissible, that the colt charged was delivered by the testator to the intestate, as a gift to Mrs. Low. “ The contract or cause of action in issue and on trial,” was, whether the intestate purchased the colt of the testator. Neither of the parties to that cause of action is living. Mrs. Low, the administratrix of the intestate, is interested in her husband’s estate, and to show that the colt was delivered by the testator as her property, and not as her husband’s property. The statute, Gen. Stats., ch. 36, § 24, has removed all disqualifications by reason of interest in the event of the suit. Mrs. Low was not a party to the contract or cause of action in jssue and on. trial, and does not fall within that provision of the above section which'declares, “ where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person living and competent to testify.” By “ contract in issue ” is meant “ the contract in issue and on trial.” The contract to which Mrs. Low testified was not the one in issue and on trial, but another contract or transaction between herself and the testator, which comesr into the case collaterally, and as a fact bearing collaterally upon the contract or cause of action in issue and on trial, has the effect to establish that the contract in issue and on trial, and which the estate of the testator is attempting to enforce, never existed. She does not come within the disqualification of the statute. This is the construction which the court has repeatedly placed upon this statute. Cole v. Shurtliff, 41 Vt., 311; Manufacturers’ Bank v. Scofield, 39 Vt., 510 ; Lytle v. Bond’s estate, 40 Vt., 618; Hollister, adm’r., v. Young, 42 Vt., 403. Admitting Mrs. Low’s testimony, and the commissioner finds that the plaintiff is not entitled to recover for the colt.

III. The only remaining question is, whether the charges for cash lent, which wore allowed against the defendant estate by the commissioners on that estate, came up to the county court on the appeal by the plaintiff estate. All the items which the plaintiff estate joresented to the- commissioners appointed by the probate court, were recoverable in a single suit in assumpsit. They found but one claim. The commissioners, as was their duty, indicated what part of the plaintiff’s claim consisted of a, note, and what part of book account items. Nothing has come to our attention to show that in taking the appeal, the plaintiff estate appealed only from a part of the action of the commissioners and of the probate court in reference to the claim of the plaintiff estate. The appeal appears to have been general, and as such, would bring the whole claim of the plaintiff estate before the county court. This, we think, would be the effect where the claim was recoverable in one suit and-one form of action. So far as the case reveals, we think the items for cash lent were properly before the county court. No question is made but these items must be disallowed from the facts found by the commissioner appointed by the county court.

The result is, the pro forma judgment of the county court for the defendant is reversed, and judgment rendered for the plaintiff to recover the amount of the note with interest and costs.