Brewster v. Countryman

By the, Court Savage, Ch, J. There were but three questions raised below to the decision of which exceptions were taken: 1. Whether the .paper alleged to be a copy of the agreement should not have been received in evidence; 2. Whether the court chargedt he jury correctly; 3. Whether they should not have charged as requested by the defendant's counsel. As to the paper purporting to be a copy of the agreement, the best evidence was not produced. The plaintiff had re [449] quested Joseph Hunt to make a copy, and the paper produced purported to be a copy, and was in Hunt’s hand-writing; and the witness who had seen the original, said it was substantially the same. This was pretty strong testimony, yet Joseph Hunt’s testimony would be stronger; Joseph Hunt was not produced, nor was his absence accounted for. The evidence produced showed that there was better evidence in the power of the defendant, not produced. That is the very case in which secondary evidence should not be received as sufficient. The court was correct in this decision. I do not consider it very important in this case, for the plaintiff’s witness testified that there was no written agreement to indemnify ; that the defendant refused to insert such agreement in the writing. The case stands therefore precisely as it would have done had the copy been introduced showing that fact; and that, I understand, was the only object of introducing the copy. The defendant says, “ I will not give you a written indemnity, but I have sold you the property; it is yours, and I will see you out with it. ” Assuming that these last words are synonymous with “ I will indemnify you, ” or “ save you harmless, ” then the transaction is simply this : When the plaintiff asks for a written indemnity, the defendant says, “ I will not indemnify you in writing, but I agree by parol that I will save you harmless. ” A parol agreement to indemnify in such a case is as valid as a written one ; and no inference can be drawn from the fact that no such agreement was contained in the writing. Had nothing been said on the subject at the time, and previous conversations only had been relied on, then the rule would apply, that where parties commit their contract to writing, the presumption is that the whole which was deemed material was written, and what was not written was not intended to constitute a part of the contract; but in this case there is no room for such presumption, for after the writing was drawn and probably executed, the defendant says, I will save you harmless. This was no more than the law imposes upon him so far as concerned the title, provided he had due notice of any claim affecting the title. It was a valid [450] agreement and founded upon sufficient consideration, and did not contradict or vary the written agreement. The charge of the court was substantially this; that if there was an agreement to indemnify, then the defendant was liable at all events, and the jury need not inquire into the question of title; but if there was no special agreement to indemnify, then they must be satisfied that the defendant had no title to the property when he assumed to sell it. In relation to the facts of the case, the law was, I think, correctly stated ; but still, I see little or no difference between the two positions. In the first case, no evidence of title out of the defendant need be produced as such, but the plaintiff must show that the property was taken from him by due process of law, or by paramount title ; and in the latter case, a recovery by due process of law, with due notice of the prosecution to the defendant to enable him to defend, is evidence of want of title, if the claim originated anterior to the sale by the defendant. If there is any distinction, it is unnecessary to discuss it; for, by the evidence before the court, it appears that the question of the defendant’s title under the assignment, was the important question. E. Fairchild, the plaintiff in that suit, claimed also under an assignment from B. Fairchild, The only question, therefore, contested before that court was, which had the better title derived from B. Fairchild. It appears that the defendant in this suit in the court below (the-plaintiff in error) was a witness in the cause of E. Fairchild against Countryman. He had notice therefore of the claim, and was bound to sustain his title, whether he specially agreed to indemnify or not. I assume that Brewster had due notice-of E. Fairchild’s suit, for no objection was raised of the want of notice; and it appears that he had actual notice, from the fact of his being a witness on the trial. It is argued by the plaintiff’s counsel that this fact shows that Brewster was not then considered as interested; but that does not follow. It shows that a witness was in fact sworn in the cause who, by his own testimony, showed that he was the party in interest, unless he had been released ; and if released, that would have been a good defence in this suit. That fact, therefore, merely shows, that in the suit brought by E. Fairchild, Brewster [451] had a chance to defend his title by his own oath; of that he cannot complain. I do not think it necessary to inquire whether Countryman lost his claim, by the mistake in the proceedings, in consequence of which the appeal was quashed. There was no exception taken which raises that question distinctly to the court; but there can be no doubt, that where the vendee is prosecuted by a third person for property claimed by a title superior to the title of the vendor, if the vendee gives the vendor notice of the prosecution, he is not bound to appeal to a higher tribunal, even if he is not bound to defend at all. If I am right in supposing that the charge of the court below was substantially correct, it follows that they were correct in refusing to charge, as requested by the defendant’s counsel. That the words, “ see him out with it,” in the connection in which they stand, can mean nothing else than to indemnify or save harmless, seems to me quite clear; if it was a cant phrase or provincialism, meaning something else, evidence should have been offered to prove it, but then the matter must have been submitted to the jury. The court could not have correctly charged the jury that the suit brought by E. Fair-child had no connection with the case on trial; it was extremely important to make out the plaintiff’s case. I am therefore of opinion that the judgment of the Herki-mer common pleas ought to be affirmed.