Chappell v. Dann

By the Court, Johnson, J. The defendant bid at the sale, in his own name, and took the certificate from the plaititiff as sheriff, in his own name. The presumption therefore is, that the purchase was on his own account; and the action was properly brought against him to recover the amount of the bid. (Beardsley v. Root, 11 John. 464.) The refusal of the judge to nonsuit was proper. The cause of action being thus made out, could the defendant, by way of defense, prove by parol that he purchased as the agent, merely, of the plaintiff in the execution, and not on his own account ? The proof offered and excluded, was the admissions of the plaintiff in the execution, made after the sale and before the commencement of the action. It is a general rule that parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written contract in which he appears as principal. But if parol evidence was admissible, that offered was mere hearsay. The plaintiff, in the execution, was not a party to the action, and was a competent witness for the defendant, on the trial. (Benjamin v. Smith, 4 Wend. 332.) It appears from the evidence, that the plaintiff in the execution had demanded the money of the sheriff, and threatened to sue him unless it was paid, and that the sheriff brought this action to protect himself. It will be seen, therefore, that the plaintiff- in the execution was in no sense a party to this action. His claim was exclusively against the sheriff. The exception to the ruling in this respect was not -well taken. [25] [Monroe General Term, September 3, 1855. The learned justice was also right, I think, in shutting out the judgment and execution in the suit of Chase v. Humphrey, and the other matters set up in the supplemental answer. The evidence was not competent for the purpose of establishing the fact that the. defendant purchased as agent of the plaintiff in the execution, because the action there was between persons neither of whom are in any respect parties to this action. Nor was it competent for the purpose of establishing the lien of the defendant as attorney, because if he had one, in the first instance, he lost it irrecoverably when he assigned his demand for the services, to Chase. The judgment, when recovered, for the services, belonged to Chase, and if the defendant had purchased it, and was the owner at the time of the trial, the lien, if there was one originally, was not restored. And as a set-off or counter-claim, clearly it was not available. I do not intend to hold that there was a valid lien in favor of the defendant as attorney, originally. It is unnecessary to discuss or decide that question, as it must be obvious that such lien, if it existed, was destroyed by the assignment of the claim, and could not be revived by a subsequent purchase of the judgment. New trial denied. Welles, Selden and Johnson, Justices.]