Goodrich v. Stanley

Waite, J.

The decree, in this case, is, that unless the defendants pay to the plaintiff the sum of $749.80, with the interest thereon from the 27th day of September, 1853, being the amount due from the estate of Booth to the plaintiff, the defendants shall be foreclosed of all right to redeem the mortgaged premises.

If that amount was also due upon the mortgage, then the decree in respect to the debt, is right. But, if the heirs of Goodrich are required to pay more than is due upon the mortgage, or forfeit their interest in the property, then the decree is erroneous.

Our statute provides, that “courts of equity shall cause the facts on which they found their decrees to appear of record.” Statutes, ed. 1849, p. 337. Hence, in this case, by our practice, a writ of error will lie, to reverse a decree of a court of equity, as well as a judgment of a court of law.

We must, therefore, look to the finding of the court, to see whether enough is there found, to justify a decree for the payment of that sum, by the heirs of Goodrich. It there appears, that Goodrich had paid, upon the note, by his labor, before the assignment, $42.55, and before notice of the transfer, $61.61 more, making together, $104.16.

These sums, it is admitted, on the part of the plaintiff, ought to be applied, in part payment of the note, and this, as he claims, has been done, inasmuch as they must have been included in the sums actually endorsed upon the note. But this is denied by the defendants.

It is, indeed, found, that the sums'endorsed were for the services of Goodrich, under the parol agreement with Booth; but when they were performed, does not appear, and it is *84 not found that they embrace the two other items. There is no correspondence between them, either in date or amount, and nothing to justify us in saying, that the latter were embraced in the former.

Again, it is found, that, on the 27th of September, 1853, there was due upon the note, the sum of $845.27. If a true description of the note and endorsements is given, it is impossible to see how that result can be obtained, upon any principles. And this is admitted. There is, therefore, evidently, a mistake somewhere. But even if the amount has been correctly computed, and the two items of $104.16, have not been allowed, the balance, after their allowance, will not be sufficient to justify the decree.

Under these circumstances, we are inclined to think enough has not been found, to authorize the decree, and that justice requires, that the case should be sent back to.the superior court, that the necessary corrections may be made.

As the decree, for the reasons already stated, must be reversed, it will perhaps be unnecessary for us to examine the other objections urged against it, with the exception of one, principally relied upon, in the argument, and which may be material, in the final disposition of the case.

The defendants claim, that the note has been paid by the services rendered by Goodrich, under the parol agreement, and if not so paid, they have a right to set them off against the balance due on the note. This claim would be well founded, had there been no transfer of the note, as the report shows, that the value of those services is greater than the amount due on the note, and that Goodrich has fulfilled his contract with Booth, and, of course, no suit could now be maintained in favor of the representative of Booth.

And as the note, although negotiable in form, was due at the time of the transfer, the plaintiff took it, subject to all the payments and equities, to which it was liable in the hands of the payee. Robinson v. Lyman, 10 Conn. R., 34.

Although the parol agreement made before, and at the *85 time of, the execution of the note, can not be received to vary or alter its legal effect, to show that it was payable in work, and not in money, yet it is admissible, for the purpose of showing the application of the services performed under it,—whether they were received in part payment of the note, or were intended to create a distinct indebtedness.

But, after the transfer and notice to Goodrich, the note became, in equity, due and payable to the plaintiff, and no subsequent payment made to Booth would affect his rights; nor can any set-off of a debt due from Booth be made.

It is however said, the agreement, made subsequent to the execution of the note, and before the transfer, changed the contract, and made it one payable in labor. We do not so understand the agreement. It is but the consent of Booth to receive payment in labor, instead of money; and so far as it has been executed on the part of Goodrich, it is binding upon Booth.

But, as the plaintiff is a bona fide assignee of the note, for valuable consideration, without any knowledge of the parol agreement, his rights are unaffected by it, so far as it remained executory, at the time notice of the assignment was given.

We have been told, in the argument, that there is a strong and imposing equity, in favor of these defendants; that Goodrich has paid the full amount of the debt, according to the original agreement of the parties; that the debt was assigned as mere collateral security, and the plaintiff omitted, for several months, to give the debtor any notice of the assignment, and after it was' given, he permitted the assignee to make endorsements upon the note, for labor performed, under the original agreement; that he subsequently lay by, for a period of more than twelve years, without making any claim upon Goodrich; and now, after Goodrich has paid the full amount to Booth, and Booth has died insolvent, he is attempting to enforce payment, a second time.

These circumstances, certainly, have a tendency to awaken *86 suspicion that all is not right, and were proper for the consideration of the committee, when enquiring into the facts in the case,—but can have no effect upon the legal questions.

The decree of the superior court must, therefore,' be reversed.

In this opinion the-other judges concurred, except Church, C. J., who was disqualified.

Decree reversed.