Newcomer v. Kline

Upon a contract for a loan of money between K. and N., S. agreed to become' bound witli bí. as his surety in a single bill for its re-payment. K. then advanced the sum, and took from 1ST. and S. their single bill, in which the word dollars, was omitted by mistake. Upon a bill fíled to correct the mistake and enforce payment, the money being due, a Court of Chancery has jurisdiction to pass a decree against both, for payment of principal and interest. Where a party lends money upon an agreement for a single bill from the borrower, with surety, although he may (the bill from defect being void at at law,) sue in assumpsit for the money, yet that remedy is not so full and ample as to deny jurisdiction to a court of equity to enforce the original-contract. The consideration of a single bill cannot be enquired into, or a failure of it jiverred or proved in' an action upon it at law. A' specialty cannot rest partly in writing and partly in parol. A partial ambiguity in a bond cannot be explained by parol evidence.

Appeal- from the equity side of Washington County Court. On the 18th December 1837, Alfred Kline, filed his bill alleging, that on or about the 12th of April 1836, a certain Joseph Newcomer of said county, applied to your orator to loan him the sum of $310; that your orator agreed to lend him the said sum-, provided the said Newcomer would give your orator his bond with good security for the same; that the said Joseph Newcomer thereupon applied to a certain John Stonebraker to become his security in the premises, and the said Stonebraker consented and agreed so to do, it being distinctly agreed and understood between the parties, that the said money was to be-returned in sixty days. Your orator further shews, that the terms and amount of the said loan being thus agreed upon between the parties, he paid to the said Joseph Newcomer the said sum, and the said Joseph Newcomer, with the said John Stonebraker as his security, then executed to your orator their joint and several single bill, bearing date on the day and year aforesaid, and payable sixty days after date, which is herewith exhibited as part of this bill of complaint. Your orator further shews, that in drawing up the said single bill, the word “dollars” was accidentally and by mistake omitted; that it was intended by the parties that the said word “dollars” should' have been inserted in the body of the said single bill, after the words “three hundred and ten,” and before the words “for' value received,” so that the said single bill should contain on the face of it, a promise hj the said Joseph Newcomer and John Stonebraker to pay your orator, sixty days after the date thereof, the sum of three hundred and ten dollars, for value received. Your orator has applied to the said defendants in an amicable way, and requested them, notwithstanding the said mistake, to pay him the said sum of three hundred and ten dollars, with interest thereon, from sixty days after the date of the said single bill, which they have refused to do. Prayer for relief against this mistake, its correction, and that defendants may be compelled to pay your orator the sum so loaned, with the interest thereon, as aforesaid; for subpoena, &c., answer, &c. Exhibit filed with the bill: “Sixty days after date we or “ either of us promise to pay to Alfred Kline or order, three “ hundred and ten, for value received. Witness our hands and “ seals this twelfth day of April, eighteen hundred andthirty•“six. Josex’h Newcomer, (Seal.) John Stonebraker, (Seal.)” The defendants appeared and demurred to this bill, and as■signed the causes of demurrer. 1st. That the said complainant hath not, in and by his said bill of complaint, stated such a cause as doth or ought to entitle him to any such discovery or relief, as is thereby sought and prayed for, from or against them these defendants. 2nd. That if the matters stated in said bill do entitle or give the complainant any cause of complaint against them these defendants, the same is triable and determinable in a court of common law, and ought not to be enquired of by this court as a court of equity. 3rd. That the matters and allegation stated and set forth in said bill of complaint, do not warrant the prayer for relief in said bill as prayed; the prayer in said bill being only for the payment of a sum of money specified in a single bill, exhibited in said case. 4th. That the bill of complaint does not allege and set forth that the facts of which the complainant seeks discovery, are not susceptible of being proved in a court of common law, in an action on said single bill, with proper pleadings and allegations. 5th. That the complainant in said bill of complaint seeks both discovery and relief, which discovery if obtained, can only be had to be used, in an action on said single bill in a court of common' law, where all matters for the payment of money only are cognizable. 6th. That the facts and allegations stated and set forth in said bill of complaint, do not give this court cognizance of the sqhjeet matter, further than to correct and relieve the complainant against the mistake in said single bill, if there be any mistake. 7th, That the complainant, if he have any remedy in the premises, has a complete remedy in a court of common law. The cause being submitted for final hearing- on the demurrer by consent, on the 2,6th day of November 1840, Washington county court (T. Buchanan, A. J.,) adjudged, ordered and-decreed, that the defendants pay, or bring into this court to be paid unto the complainant, the sum of three hundred and ten dollars, current money, with interest thereon from the eleventh, day of June eighteen hundred and thirty-six, until paid, or brought in as aforesaid, together with the complainant’s costs; qf spit, to be taxed by the register. The defendants appealed.