Armstrong v. Munday

By the Court, Beardsley, C. J. The first point made by the counsel for the defendant is, that the breach of covenant complained of in the declaration is the non-payment of $1085, which the defendant covenanted to pay the plaintiff, and that amount having been paid to the plaintiff as was proved on the trial, it is insisted the defendant was entitled to a verdict. This objecjeclion rests on a misapprehension of what is alleged in the declaration. The breach assigned is the non-payment to the plaintiff of the residue of the sum of $3500 mentioned in the covenant, over and above the $1415,10, directed to be paid to Frederick Munday, and not the non-payment of $1085 only, as the objection assumes. The déclaratjon virtually admits the payment to Frederick Munday of $1415,10, the breach alleged being that the residue of said $3500, that is, $2084,90, had not been paid to the plaintiff. It is not pretended that the last named sum had been paid directly to the plaintiff, but it is insisted that the amount paid by the defendant to Holliday was [170] in law a payment to the plaintiff, and this seems to be the only material question in the case. The second point made by the defendant is that by the covenant the defendant was to pay the plaintiff only $1085, and to Frederick Munday and Hiram Holliday $2415, in such portions as the plaintiff should direct; that the plaintiff directed $1415,10 to be paid to Frederick Munday, which left $999,90 for Hiram Holliday, which the defendant paid. This sum the defendant was bound to pay to Holliday. The plaintiff, it is alleged, has no right to this money on this covenant. It was not contended on the argument of this case, as seems to have been held in the chancery case, that evidence was admissible to show that it was agreed by parol between the parties to the covenant at the time of its execution, that the defendant should pay to Holliday the amount alleged to be due to him from the plaintiff. Such evidence was wholly inadmissible on the well known principle that parol evidence cannot be received to contradict, enlarge, restrict or qualify a contract when reduced to writing. The writing must be taken to express the entire agreement between the parties. (1 Phil. Ev. 561; Cowen & Hill’s Notes, p. 1466.) Looking at this covenant alone, ito true meaning, as I think, is, that the defendant would pay the full sum of $3500 to the plaintiff, unless he should direct that «orne part thereof should be paid to Frederick Munday and Hiram Holliday. There is nothing on the face of the written agreement to indicate that any precise sum should be paid to either of the persons last named, or to show that the defendant had any interest in that question ; and upon the terms of the covenant it cannot be construed to secure any interest the defendant might have that the payment should be made to Frederick Munday or Holliday. If the plaintiff had directed only a single dollar to be paid to each of the persons named in the covenant, the balance, that is, $3498, would indisputably have been payable to the plaintiff himself, and if no direction to pay either of said persons had begn given by the plaintiff, the whole sum would have been his due. The defendant, as far as is shown by the covenant, had no interest in that question, and [171] could not insist on making any payment to F. Munday or Holliday. And as no direction was given to make a payment to the latter, the amount paid to him, by the defendant, was without authority, and cannot be allowed to prejudice the plaintiff. This covenant was very badly drawn, but still, it may, as I think, be understood. Its true meaning, as it seems to me, was that the plaintiff would execute the deed on the 1st of March, 1839, the defendant at the same time paying to the plaintiff $1085, and to F. Munday such sum as the plaintiff might direct. As to the residue of the principal sum of $3500, the plaintiff might direct it to be paid to Holliday, in which event the defendant was to be allowed three years to make the payment ; and if no such direction was given, the defendant would, perhaps, be entitled to the same credit from the plaintiff himself. Such is my understanding of the agreement between these parties, as carried into the covenant, although it is quite manifest that what was written does not express what was really intended by the parties. Parol evidence, however, cannot be received to control or change what is in writing, and the covenant must be carried info effect, as it would be, if such had been what was really intended by the parties. It must for the purpose of the case as now presented, be assumed that the $1085 were paid to the plaintiff on the day specified, and that $1415,10 were paid to F. Munday as directed by the plaintiff. The plaintiff at the same time executed a deed to the defendant as required by the covenant. If these payments were made as supposed, there remained due on the covenant $999,90, for which the plaintiff was entitled to recover, the payment made by the defendant to Holliday being in no just sense a payment on this covenant. The only other point made by the counsel for the defendant was that in which he asserts that the decree in the chancery suit is conclusive between the parties as to the validity of the payment toHolliday. This cannot be maintained. So far from being “ecu-elusive” on the point, the decree does not in any degree affect it. The decree was not between these parties, nor is the defendant in [172] privity with Holliday so thai it can, on that ground, be set up by him against the plaintiff. The payment to Holliday was voluntary, for he had no claim on the defendant, and the latter gained nothing by that payment or by the decree founded upon it. The fact that such payment had been made, was not, indeed, properly in question in the chancery case. .The point in issue there was the fact of usury, and if this alleged payment was deemed to be material it could only be brought out in that case by a cross-bill. But it is unnecessary to pursue this subject. On the case, as now presented, the plaintiff is entitled to judgment. Judgment for the plaintiff.