Chetwood v. Brittan

The obligor of a bond will not be admitted to prove by parol, that, at the time of giving the bond, it was agreed that the obligee should look to another source for payment, and that the obligor should not be personally liable. Whatever the contracting parties reduce to writing, must be considered as .embodying their understanding at that time. If by fraud, or mistake, or accident, the paper should not contain the true agreement or the whole agreement, it may be supplied by parol. Evidence will not be admitted of what took place at the time of executing a written agreement, to ad'd to or vary the contract. A written agreement cannot be varied by parol evidence, unless in eases where there is a clear subsequent and independent agreement, varying the former. But it seems that the objection to varying a written agreement by parol, rests merely on the rules of evidence. If a defendant, by his answer, admits the charge in the bill, that at the time of executing a bond, it was verbally agreed that the complainant should not be personally liable for the money, will not equity give relief against a recovery on the bond ? — Quere. The continuance of an injunction must always rest in discretion, not arbitrary, but controlled by established rules. The equity of the bill may be answered, and yet the court will continue the injunction to the hoaring, especially if the dissolution would work a greater injury than a continuance of the process. Injunction continued upon terms.

Bill, filed 25th of February, 1840, states, that, a short time previous to May 16th, A. D. 1836, Aaron L. Middiebrook entered into an agreement, as complainant was informed, to purchase from Stephen P. Brittan, the defendant, a tract of land containing about twenty-three acres and three quarters, situate about half a mile from Elizabeth-Town : that the price was three hundred dollars or more per acre, and upwards of two hundred dollars more per acre than the defendant paid for the same: that the complainant agreed to join Middiebrook in the purchase; but when the company was formed to take said properly in shares, as herein after mentioned, complainant disposed of his right to take a part, but never received one cent for the same, and has no expectation of ever receiving any thing r that before any deed was given for said property, Middiebrook procured one Jonathan D. Williamson to form a company to take said land in shares: that a company was made up, and complainant was offered a share, but declined taking any : that some time afterwards, Middlebrook and Williamson called at complainant’s office, and wished complainant to take a deed in his own name as a mere stakeholder or trustee for those interested in the property : that they informed complainant that the parties interested wished the deed to be made oat to him, he having no interest therein, that he would be a mere stake-holder, and need do nothing more in the business than merely sign deeds when any part of the property should be sold, and that they intended to lot off the land and sell it without delay, and pay the defendant the remainder of the purchase money out of the proceeds of the first sales. That the defendant knew of all these circumstances, and consented thereto, and particularly that complainant had no interest in the property, and took the deed as a mere stake-holder, and often so admitted. That about May 16th, A. D. 1836, the defendant called at complainant’s office, and said he had those papers ready, and produced a deed executed by himself and wife for the said premises, and duly acknowledged, bearing date May 16th, A. D. 1836: that at the same time the defendant produced a bond and mortgage on said premises, to be executed by complainant to him, for the balance of the purchase money, he having received about two thousand dollars thereof from Middlebrook and Williamson : that complainant objected to execute the bond, as he had no interest in the property, but the defendant informed him he need be under no apprehension of trouble or difficulty as to liability, as he would take the land or look to the land at any time for the balance of the consideration money; upon which assurance of the defendant, complainant was induced to sign said bond and mortgage. That the defendant had the crops growing on said land the year he sold it: that he received from Williamson and Middlebrook the avails of subsequent crops of the said land, and the proceeds of the sale of the same under a decree of the court of chancery, amounting to eighteen hundred dollars, so that he realized more than four thousand dollars from said property. That after the execution of the said bond, the defendant from time to time had interviews with the persons interested in the property, and extended the time of payment of the interest, and in some cases took notes ftom them for interest due, without consulting complainant, and never asked complainant to make any payment on said bond, nor ever intimated to complainant that he looked to him for any part of the same, and managed the business in his own way until after the mortgaged premises were sold, although at the lime of said sale the bond had been due some lime. That, after the premises were sold under the decree upon the mortgage, the defendant offered the persons interested in the lands, that if they would pay the residue of the purchase money, he would throw off' seven or eight hundred dollars, and would take their several notes endoised by others for their respective propoitions of said balance after said deduction. That, after said bond and mortgage were given, and interest dun thereon, the defendant borrowed one thousand dollars of complainant, and gave his note therefor, payable in six months, wil.lt interest: that he paid the interest, and three hundred dollars of the principal of said note when it became due, and would have paid the whole amount if tequired, but as complainant did not want it at that time, the defendant gave complainant his note for seven hundred dollars, payable in six months with interest; and although interest was due on said bond, and as complainant believes the piincipal also, when the money was borrowed and when it. became due and part thereof paid and the new note given, the defendant never intimated to complainant that he looked to him for payment of any part of the said bond, nor suggested to him to apply any part of the monies secured by the said note to the payment of any part of the interest or principal of said bond: that the complainant had no idea that the defendant would ever attempt to make him personally responsible on said bond, or trouble him with any suit on the same. That afterwards, the defendant tiled a bill ef privilege in the supreme court on the said bond against the complainant, to recover from him the balance alleged to be due thereon. Bill prays an injunction to restrain defendant from proceeding in the suit against the complainant, and also from assigning the said bond to any other person, and such other relief, <fcc. On filing the bill an injunction was allowed by the chancellor. On the 14th of July, 1840, the defendant filed a demurrer, which was subsequently withdrawn by leave of the couit, aud an answer filed. The answer admits, that on the 13th of May, 1836, the defemfant made an agreement in writing with Aaron L. Middlebrook, to sell him about twenty-seven acres of land about one fourth of a mile from Elizabeth-Town, at two hundred and seventy-live dollars per acre, and that on or about the 16th day of the same month the defendant and his wife, by the request of Middlebiook,conveyed to the complainant about twenty-four acres of the land so agreed to be sold to Middlebrook; and at about the same time, at the like request, he conveyed the balance of the tract to Jonathan D, Williamson; and for the balance of the purchase money for the said sale and conveyance to the complainant, the defendant received from the complainant his bond or obligation, bearing date the 16th dayof May, 1836, conditioned for the payment of four thousand five hundred and seventy-six dollars and sixty-nine cents, in one year, with interest payable semi-annually, which bond was secured by a mortgage of the same date, executed by the complainant and his wife, on the land conveyed to him as aforesaid. That the land so agreed to be sold to Middlebrook, was purchased' by defendant several years before the sale to Middle-brook, and for some years prior to the sale produced annually per acre the interest of three hundred dollars. That the said laud cost the defendant nearly one hundred dollars per acre, including improvements, and. the part conveyed to Williamson cost one hundred and fifty dollars per acre, exclusive of improvements. Denies that defendant was to receive from the sale upwards of two hundred dollars per acre more than the land cost, including improvements. The agreement to purchase of this defendant, made by Middlebrook, was made for himself, and no other person was then known to defendant to be concerned with him, and as defendant is informed and believes, the complainant agreed with Middlebrook to become interested as one of the purchasers, and after said agreement with other persons interested therein, sold out their interest in the same to Jonathan D. Williamson and others, at the rate of four hundred dollars per acre,- and that complainant sold his interest in the same for at least seven hundred dollars more than it cost him. Admits that it may be true that complainant has received nothing, and expects to receive nothing for his share so sold ; and that it may be true that Middlebrook did procure Williamson to form a company to take the land conveyed to the complainant in shares, that a company was formed for that purpose, and that complainant was offered a share or shares and declined taking any, that Middlebrook and Williamson wished complainant, to take a deed in his name, and hold the same as trustee or stake-holder for the purchasers, but denies that defendant, at or before executing his deed to the ■complainant, was acquainted with the plans or arrangement of selling and dividing the lands, or that he had any thing to do therewith, or that the complaiuant was in any manner a trustee for the defendant, or authorized so to act for him, or that the defendant at the time of executing the deed to the complainant, or at any time since, was in any way interested in the lands conveyed by him to complainant, other than as mortgagee thereof Admits that it may be true that Middlebrook and Williamson ■represented to complainant that he was to be a mere stake-holder or trustee for the purchasers, and need only sign deeds when any part of the property was sold, that they intended to sell without delay, and that the balance of the purchase money would be paid out of the proceeds of the sales, but denies any knowledge thereof or participation therein. The answer further states, that the son of the complaiuant had been employed by the defendant as his attorney and counsellor for several years previous to the said sale by the defendant, and defendant having full confidence in his accuracy, employed him to prepare the deed executed by the defendant and his wife to the complainant, as stated in the bill of complaint, and that if the consideration for the sals is omitted in the deed of conveyance, such omission defendant believes was accidental. Denies that the omission was by the direction, knowledge or consent of the defendant. States that the bond and mortgage given to the defendant by the complainant, were •drawn by the complainant’s son. Denies that the said bond and mortgage were delivered on any terms or conditions inconsistent with the absolute delivery thereof Admits that after the papers were executed, and at the (¡me they were exchanged, the complainant said to llie defendant, in a pleasant way, “ Now, judge, I hope you will look to the kind first, before you call on me for the bond;” and that, defendant said he would do so if the complainant wished it, which defendant, considered as a friendly act toward complainant and no part of the bargain. Denies that the defendant engaged to look to the laud aud not to the complainant for tlie payment of the purchase money, or that defendant made any other promise than as before staled. Admits that (he defendant received from Middlebrook and .Williamson, in promissory notes, one thousand nine hundred aud filly nine dollars and thirty cents, on account, of (he purchase money of said land, making, with- the' amount secured by the complainant’s mortgage, the whole consideiation for which said lands weie conveyed to the complainant. Denies that at the lime of executing the said bond and mortgage, or at any other time, defendant agieed to take back the land, or to look to the land at any time for the .balance of the consideration money. States that it was a part of the defendant’s contract with Middlebrook, that defendant should have all the crops (lien growing on the land, which defendant gathered, but that he lias received no other crop or profit except some pasture amounting to thirteen dollars and twenty-eight cents, which was' credited to the complainant. Admits that the moilgnged premises, upon a bill filed by tliis defendant, were sold by the sheriff' of the county of Essex upon a decree of this court, aud that, the defendant, received one thousand seven hundred and twenty-four dollars and fifty-four cents arising from said sale, and no more. Slates that after complainant agreed to become interested with Middlebrook in the purchase from defendant, the complainant and those interested with him sold out. their interest to a company for three thousand dollars above what the land was purchased for, for which they received certain promissory notes in payment; and that when the complainant agreed to take the deed, it \ as agreed by the purchasers to indemnify him from any loss in consequence of bis taking the-deed aud giving his bond and mortgage. Admits that about (he lime (he money secured by (he complainant’s bond and mortgage was becoming due, the defendant was called on by some of those interested in the purchase, to know if lie intended to foreclose his mortgage if the money should not. be immediately paid, to whom defendant staled that if the interest was paid he would not press for the principal ; soon after which this defendant received from complainant one hundred and fifty dollars, and no more, which was endorsed on tiie bond. Tital he was subsequently applied to by the same persons to know if he would not take the laud back, which the defendant, refused to do, but consented that if he could be paid, principal and interest, or if they would satisfy the complainant and pay the interest on (he bond, that he would credit five hundred dollars on the bond; one of which propositions this defendant supposed, fiom the expression used by those calling on him, would have been accepted. States that defendant, urged upon complainant to procure the bond of indemnity from those interested in the land, and from friendly feelings for complainant offered to lake the bond and endeavor to get it executed, which lie did, but without success. Deuic-s receiving any note or money ibr interest, on said bond except as before stated. Slates that in October, 1837, the defendant (being urged thereto by complainant) took from the complainant by way of loan one thousand dollars for six mouths ; that, at, its maturity and afterwaids defendant was desirous to pay off the note, but complainant declined taking it. Defendant insisted on paying three hundred dollars, and for the balance due on said note to the complainant, on the 22d day of June, 183S, the defendant gave his note to the complainant for seven hundred dollars, at six months. Denies that, this tempomry loan was in any wise to affect the complainant’s bond to the defendant,. Admits that it may be true that nothing was said, on giving said notes, about the complainant’s bond to the defendant,. as lie had promised first to proceed against the land, nor was ¡my thing then said respecting a. nolo for five hundred and seventy-two dollars which defendant then held against the complainant and his son. Admits the filing of a bill of privilege against the complainant for the recovery of the money due on the bond. Insists that defendant has said or done nothing which should preclude or bar hcim from proceeding in his action against the complainant to recover the balance due on the bond, and that the injunction ought to be dissolved. The answer further states, that since the filing of the bill of complaint in this cause, the complainant has prosecuted the defendant at law to recover the promissory note for seven hundred dollars given by the defendant to the complainant; that the defendant appeared to the said action, and gave notice that he would set off so much of the balance due on the bond as would be sufficient to satisfy the note, and would claim the balance, and that the said suit is still pending undecided. Defendant has no recollection or belief that after the sale of the said mortgaged premises he ever authorized the said Aaron L. Middlebrook, (who married this defendant’s daughter sometime after the execution of the said article of agreement.) to throw off any sum whatever of the balance due on the said bond, or to take any person’s notes for the same. The cause came on for hearing upon motion otr behalf of the defendant to dissolve the injunction, upon bill and answer, before the chancellor, at Newark, on the 5th day of May, L84I.