Downer v. Button

Where a mortgage is given to secure the payment of a promissory note, and the note is indorsed to a third person, who commences a suit thereon, the presumption is that the mortgage follows • the note; and notice to the holder of the note to produce the mortgage upon the trial, and a non-production of the same, entitles the defendant to introduce secondary evidence of the contents of the mortgage. The admission of an independent fact during a negotiation for a compromise may be given in evidence, but all oifers to settle or compromise a suit are in- . admissible. Where the authority of an agent is given by parol, he is a competent witness to prove the authority. In such cases he is, from the necessity of the case, a competent witness to show that he acted according to the directions of his principal, and within the scope of his authority.

Assumpsit, against the defendant as signer of seven promissory notes. Two of the notes were confessed; and there were in dispute three, dated October 7th, 1841, for $> 100 each, payable to John Francis or order, in two, three, and four years from date; and two others, dated January 20th, 1842, for $75'each, payable to the plaintiff or order, in two and three years from date, with interest. The defence set up was, that on the fourth day of April, 1844, by an agreement between the plaintiff and Levi Lowell, who acted in behalf of the defendant, and by his request, the plaintiff accepted a deed of certain real estate in full payment and discharge of the notes in controversy in this suit. The hundred dollar notes, when produced, had been indorsed by the executor of John Francis; and the defendant introduced in his defence the following evidence :— 1. An office copy of a mortgage of certain real estate, dated October 7th, 1841, purporting to have been duly executed by the defendant to said John Francis, to secure the payment of the hundred dollar notes. 2. A mortgage given by the defendant to the plaintiff, to secure the seventy-five dollar notes, dated June 20th, 1842, and conveying the same premises mortgaged to John Francis. 3. A warrantee deed of the same premises, except forty acres, from the defendant to Amos H. Lowell, dated October 11th, 1842, and a mortgage back by Lowell to Button of the same land conveyed by the warrantee deed, to secure one note of $300, and eight notes of $50 each, bearing the same date with the deed and mortgage, and signed by Amos H. Lowell. 4. An assignment of the last mentioned mortgage to the plaintiff by the defendant, dated March 27th, 1843. 5. A deed from Amos H. Lowell to Levi Lowell, conveying all his interest in the premises, dated July 26th, 1843. 6. A deed from Levi Lowell to the plaintiff, dated on the 4th day of April, 1844, quitclaiming the same premises conveyed by Amos H. Lowell to Levi Lowell. The defendant also introduced, the deposition of Levi Lowell, a part of which was as follows: Questions by the defendant. 1. Are you the father-in-law of Alva Button ? Answer. I am. 2. Where did you live in 1835, and where in 1843 ? Answer. In 18351 lived in Rochester, Vt., and in 1843, and 1844, I lived in Hancock, Vt. 3. Did you purchase the Button place, so called, in Hancock ? If so, of \vhom, and what did you pay for it ? Answer. I did purchase the Button place, so called, of Amos H. Lowell. I agreed to pay $800. 4. To whom did you sell it, and what was the consideration paid or agreed to be paid for it 1 Answer. I sold it to Solomon Downer, in April, 1844, if my memory is correct. The consideration was, on my giving him a quitclaim deed, he was to give up all the claims he had against the farm, both notes and mortgages, and to get up all the notes and mortgages against the farm and give up the same to Alvah Button and Amos H. Lowell. There was one mortgage on said farm for the security of about four hundred dollars, given to John Francis by Alva Button, which he, Downer, was to get up and give up to said Button; and he further agreed to let me have the use of the lower mowing on said farm, and the pasturing of a cow the following season. 11. State if you did go and see, as directed, Alva Button, respecting also his notes, then held by Downer, secured on the place, and whether he gave you any directions respecting the settlement of the notes'; if so, what it was ? The plaintiff objected to the whole of the question after the word “ place.” Answer. I did go and see Alva Button, and he gave me directions to get up all demands against the place, or not give a quitclaim deed of it. In regard to the objection taken to the- last question and answer, the court ruled that it tended to show that Levi Lowell, in making the arrangement with the plaintiff, if any was made, acted under the defendant’s instructions and in his behalf, and that it was competent for that purpose, though not for any other. The plaintiff also objected to the use of the copy of the mortgage-to John Francis, and insisted that the original should be produced. The defendant’s counsel said that at the former trial the copy was used without objection, and thatathe objection at this trial was a surprise upon him; that he distinctly recollected the fact that it was used, and would make his affidavit of it if required. The plaintiff’s counsel said that he had no recollection that the copy was used, but did not require the affidavit to confirm the statement of the other side. The defendant’s counsel then gave to the plaintiff, who was in court, a written notice to produce the mortgage; and thereupon his counsel stated that it was not in possession of the plaintiff or his counsel, and he did not know where it was, but supposed that the defendant might have it. The defendant.made an affidavit that he gave the mortgage to John Francis, at the time it was executed, and had never seen it since, and did not know what had become of it. The court admitted the copy, subject to the plaintiff’s exception. John L. Fitch, called by the plaintiff, testified that a short time after the commencement of this suit, the defendant offered to pay a certain sum to .settle the claim, and said he was too poor to pay more ; he assigned no other reason for not offering a larger sum; but the plaintiff refused to accept the offer. The plaintiff’s counsel proposed to ask the witness to state the sum which the defendant offered, to which the defendant’s counsel objected; and the court ruled that the question could not be put; and the plaintiff excepted to the ruling. The jury found a verdict for the defendant, and the plaintiff moved to set the same aside for alleged error in the rulings of the court.