Van Bokkelen v. . Taylor

Rapallo, J. The court found as facts, that on the 23d of June, 1868, the plaintiff being the holder of the bond, mortgage and promissory note set out in the complaint, executed and delivered to the defendant Taylor an instrument in writing, under his hand and seal, whereby, for value received and in consideration of one dollar, the plaintiff released said Taylor from all indebtedness due by him to the plaintiff, either on book account, note of hand, or in any other way, bearing date prior to January 1,1868, and the court decided, as matter of law, that defendant was entitled to judgment. There can be no question but that the facts found are sufficient to sustain this conclusion. But the plaintiff excepts to the findings that the release was under seal, and also to the findings that, at -the time of its execution, the plaintiff was the holder of the bond, mortgage and note, claiming that prior to the execution of the release they had been assigned by him to his brother, Adrian H. Yan Bokkelen. The release purported to be signed by the plaintiff and various other creditors of the defendant Taylor. It was produced before the court on the trial, and the court could decide from inspection whether or not it was under seal. Ho oral evidence on the subject is contained in the case. The only ground upon which the exception to this finding rests is, that in the printed copy of the release contained in the case; a two-cent internal revenue stamp appears opposite the signature of each creditor, in the place appropriate for a seal. There is nothing in the case to show that these stamps were not used as seals, or laid over some substance capable of receiving an impression, and employed for that purpose. In the absence of any such evidence the finding of the'court, *109 based upon an inspection of the instrument, cannot be disturbed. The release however, being a composition by creditors in which several united, would have been operative without a seal. The terms of the release cover the indebtedness in controversy. The bond and mortgage were dated March 14, 1857, and were given as collateral security for the payment of a promissory note dated on the same day, of which the defendant was maker, and the plaintiff payee, for $2,500, payable twelve months after date. A copy of the note is inserted in the mortgage; the mortgage states that it is given as security for the payment of that note, and a clause is contained in the mortgage to the effect that on payment of the note the mortgage is to be void, and to be canceled of record. The evidence as to the time of the assignment of the mortgage to Adrian H. Van Bokkelen is conflicting. The assignment is dated in December, 1860, but is clearly shown not to have been actually executed until August 8, 1868, or afterward. It is claimed that this written assignment was made for the purpose of effectuating a prior parol assignment, and that Adrian H. Van Bokkelen was in fact the holder of the mortgage in January, 1868, and on the 23d of June, 1868, the date of the release. The evidence on this point being conflicting, and the General Term not having reversed on questions of fact, the finding of the court at the trial is conclusive. The ground of reversal stated in the opinion delivered at General Term, was the exclusion of evidence offered by the plaintiff of certain declarations made at the time of the execution of the release. A witness who was present on the occasion, was asked the following questions: “ Do you recollect whether there was any understanding at that time as to any conditions annexed to this release ? ” “ What was said at that time, if any thing, as to its validity unless all the creditors signed it?” “What was said, if any thing, as to its validity in connection with all the creditors signing it ? ” “ Was there any thing said at the time this paper was given *110 as to when it should take effect, or upon what considerations it should take effect ?” These questions were excluded, and exceptions taken. We think that these questions were properly excluded. They sought to incorporate in the instrument, by oral evidence, a condition not expressed in the writing. The release on its face purported to be absolute and unconditional, and binding upon all the creditors who should sign it, and to be intended for execution by creditors of the releasee other than the plaintiff, as well as by him. The plaintiff signed first, and his signature was an inducement to others to follow. One creditor cannot reserve to himself under such circumstances, any secret advantage, or impose upon his releasee any condition not apparent on the face of the instrument. If it was intended that the release should be operative only in case all of the defendant’s creditors should join in it, that condition should have been expressed in the instrument. The evidence offered plainly pointed at establishing such a condition by cotemporaneous oral declarations, and was, on that ground, objectionable. The court at General Term express the opinion that the evidence was admissible for the purpose of proving that the defendant knew, at the time of the delivery of the release, that the mortgage in question belonged to the plaintiff’s brother, and could not be released by the plaintiff, and was not covered by the release. ¡No such purpose was stated when the evidence was offered; the questions asked do not indicate any such purpose, but quite a different one, and on an examination of the case it appears that many questions were put for the purpose indicated by the court, and all such questions were allowed and answered. The subjects of the assignment to the plaintiff’s brother, and of the defendant’s knowledge thereof, and of what claims were intended to be embraced in the release, and how the amount of $3,500 set opposite the plaintiff’s name was made up, were fully gone into on the trial, and both parties testified at length in respect thereto, contradicting each other on almost every material point. ¡No material evidence offered *111 on those subjects appears to have been rejected. The questions excluded evidently were not aimed at them. We find no error of law in the judgment rendered at Special Term. The order of the General Term should be reversed, and the judgment at Special Term be affirmed, with costs. All concur. Order reversed, and judgment accordingly.