Foster v. McGraw

The opinion of the court was delivered, by Agnew, J. — It is a sufficient answer to the 1st assignment of error to say that the mortgage of January 1st 1856, has neither been produced nor printed, while the defendant in error avers that it exhibits on its face no evidence of alteration or addition, after execution, to exclude it from the jury. The deed or a copy might show conclusively or apparently tiiat the matter alleged was written in the deed before execution. The court must judge of the due proof of the execution of a deed, but when duly executed, the question of alteration or addition afterwards is generally a question for the jury: Heffelfinger v. Shutz, 16 S. & R. [469] 44; Simpson v. Stackhouse, 9 Barr 186. There was no error in the admission of the evidence contained in the 2d assignment of error. The evidence proposed was of what occurred at the execution of the paper, for the purpose of enabling the court to read the paper in the light of the circumstances, and not to prove that the word “ original,” inserted at the instance of McGraw, had a different meaning from its ordinary signification. The evidence of the circumstances attending the execution of a paper, and what the parties said while engaged in the act of execution, are often very material in enabling the court to understand the contract, and to give a proper interpretation to it. This is received on the principle of explanation merely, not to alter or vary the terms of the contract. Nor was there error in receiving the evidence set forth in the Sd assignment of error. An agreement before or at the time of the written agreement of 23d January 1864, to apply the payments of Foster to the younger claims of the plaintiff, was not inconsistent with the terms of the written agreement. The purpose of that agreement was to settle and fix a specific sum which McGraw agreed to accept in full satisfaction of his claims on the real estate in Middlebury, provided this sum was paid according to the terms of the agreement. The order in which the instalments should be applied to these claims was not provided for in the agreement. It was therefore competent for the parties to be guided in the application of the payment by another agreement. The only language in the written agreement affecting this question is that part which provides that if the money to be paid under the contract should not be paid within the time specified, the money paid in hand shall “ apply on the original indebtedness of said Foster to said McGraw.” If the words “ original indebtedness” mean oldest indebtedness, as contended for by the defendant below, it would change the case, but we think that the learned judge below gave these words their true interpretation, and this leads us to dispose of the remaining assignment of error. The purpose of the agreement being to accept a less sum than Foster actually owed McGraw, provided the money should be paid promptly, according to the terms of the writing, the next thing to be provided for was the failure of Foster to pay according to these terms after he had made the first payment in hand, and this provision evidently was that the payment so made should then apply on the indebtedness of Foster, as it stood originally, before the reduction made upon it by the writing. It was simply to say, on part of McGraw to Foster, if you fail to comply with the terms of prompt payment, as required by our agreement, then we shall stand as we stood before, and what you pay will apply to my claims as they existed before we entered into this bargain. [470] This being the true meaning of the terms original indebtedness, and the agreement not having provided for the order of application, the case then stood on the question of actual application. The defendant proved no application by himself to either mortgage, so that the application was to be made to the junior mortgage, if the evidence of the plaintiff were believed, and even this became immaterial, for if no actual application had been agreed upon, as contended by the plaintiff, to the junior mortgage, still the application would be made to it by the law, on the ground that it was the least secure, both in point of time and quantity of property: Johnson’s Appeal, 1 Wright 268; Pierce v. Sweet, 9 Casey 151. Upon the whole, we discover no error, and the judgment is therefore affirmed.