Hutchins v. . Hebbard

Porter, J. The power of attorney did ,not constitute the contract between Hebbard & Hutchins and their indorsers. It was delivered in part performance of the oral agreement, of which it was a mere incident. As that agreement was never reduced to writing, it was properly established by oral evidence. (Wentworth v. Buhler, 3 E. D. Smith, 305, 307; Batterman v. Pierce, 3 Hill, 172, 178; Potter v. Hopkins, 25 Wend., 417; Barry v. Ransom, 2 Kern., 462.) When the purpose for which a writing was executed is not inconsistent with its terms, it may properly be proved by parol. (Truscott v. King, 2 Seld., 147, 161; Chester v. Bank of Kingston, 16 N. Y., 336, 343; Agawam Bank v. Strever, 18 *27 id., 502.) The objection of the plaintiff to the evidence introduced for this purpose was therefore properly overruled. The question- as to the propriety of paying the fund in controversy to the defendant, is not open for consideration, as he received it with the consent of the plaintiff. He is entitled to retain it if, upon the facts found in the court below, he is the party to whom it equitably belongs. The liability paid by him as indorser for the two contractors, was incurred on the faith of a pledge of the fond in question, and it plainly belongs to him, unless some act or omission on his part has extinguished his right. The plaintiff claims under an assignment from his father, H. B. Hutchins, who, on the 6th of February, 1856, executed a transfer of all his interest in the contract, and the moneys to become due thereon. He was one of the original contractors, and had shortly before obtained a similar transfer of the interest of his associate. The plaintiff thus acquired the existing rights of both, and he acquired no more. Their interest was subject to the defendant’s equity as pledgee of the fund, to secure him against his contingent liability. They did not assume to revoke the previous power of attorney, and they could not have done it if they would, for it was a power coupled with an interest. (Gunson v. Morton, 10 Barn. & Cress., 731; Knapp v. Almord, 10 Paige, 205.) It is claimed that the defendant was equitably estopped from asserting his right in the fund, by his omission to disclose it, at the time of the transfer of interest by one of the joint contractors to the other. This proposition has no foundation on which to rest. The precise nature and extent of the defendant’s interest was known to the assignee as well as the assignor. They were the parties by whom the fund was pledged. „ The assignment was merely a transfer by one to the other, subject to a known and existing equity. There is nothing to raise an estoppel in pais between the parties to a contract, when there is no statement, act or omission on the part of either by which the other is misled. (Lawrence v. Brown, 1 Seld., 401; Plumb v. Cattaraugus Insurance Co., 18 N. Y., 394.) *28 The claim that the defendant was estopped by his engagement as guarantor, is equally untenable. The instrument executed by the contractors, as between themselves, on the 3d of January, 1856, had a two-fold purpose and office. It operated as a present transfer by each to the other, of his interest in a portion of the joint, contracts, and the moneys to become due thereon, and also as an undertaking, by each with the other, to complete the performance of the contracts apportioned to him, and for which both were bound to the State. The two guaranties executed respectively to the plaintiff in behalf of his father, and the defendant, in behalf of his ■ brother, had relation, not to the transfers of interest, but to the performance of the unfinished work on the contracts assigned. The undertakings of the respective sureties plainly referred to the executory agreements, and not to the executed assignments. The Supreme Court was therefore right in holding, that the defendant’s guaranty did not operate as a release of his interest in the fund. The judgment should be affirmed. All the judges concurring, Judgment affirmed.