Walworth v. Barron , 54 Vt. 677 ( 1881 )

The opinion of the court was delivered by

Taft, J.

I. This is a petition to foreclose a mortgage. Its execution, with that of the notes secured by it, is admitted. The notes were given for the balance due, upon the settlement of a very large deal between the parties, the amount of which was doubtful. The defendants claim that, at the time of the settlement, the defendant, Hazen Campbell, the maker of the notes, had large claims against Bartholomew, the orator’s intestate, for which no credit had been given him in the settlement: that it was the intention that said notes should have been given for the sum due upon the settlement, after the amount of said claims had been adjusted and applied upon the debts due said Bartholomew; but that being unable to ascertain the exact sum due, it was agreed that there should be an after-settlement, and a correcting of the same. Bartholomew died ; the claims were presented against his estate, and passed into judgment, and the defendants insist in their answer that said judgment should, with other claims, be applied upon the amount due upon the orator’s notes, and the orator makes no objection to such application. The defendants, however, insisted before the master, that the judgment should not be applied unless their other claims were allowed. The court think that the application does not depend upon the allowance of other distinct and independent items, but upon the rights of the parties in respect to the judgment alone, and that rule requires the application. Had the amount of the claims which passed into judgment been known and adjusted at the time of the settlement, the notes of the orator would have been given for a sum so much less. The judgment was rendered for claims of errors in the settlement, and other- items that should have been allowed in favor of the defendant, Hazen Campbell. The orator is entitled to recover only the sum for which his notes should have been given. The rights of the parties are mutual; if the defendants have the right to an application of the judgment upon the mortgage debt, the orator has the same right. The power of a court of equity to make the application is ample, and we think the pleadings in the original cause and the facts reported by the master require it.

II. To support the claim made by the defendants in their cross-bill, that a contract was made by them with Bartholomew, Charles E. Campbell was offered as a witness to prove that a short time before the deed to Barron he made a contract with Bartholomew, similar in its terms to the one they claimed Barron made with Bartholomew. This testimony was offered for the purpose of showing the “ nature and extent of the contract with Barron, and whether the same was duly carried out.” The master excluded it. That Bartholomew agreed to make a contract with Campbell was not evidence that he subsequently made a like one with Barron. It was a collateral fact wholly immaterial and evidence of it properly excluded. It is therefore, unnecessary, to discuss the question of the competency of Campbell as a witness.

The decree of the Court of Chancery is affirmed, and cause remanded.

Royce, Ch. J., did not sit.