Coughenour v. Suhre

The opinion of the court was delivered, by Agnew, J. The offer rejected by the court was to prove “ that the note was not to be payable until defendant got the money ■from the bridge.” The objection was that the terms of the note could not be contradicted. The note was in express terms payable at a stipulated time. The offer was therefore clearly incompetent without showing fraud or mistake, or that there was a subsequent agreement made on a sufficient consideration. The deficiencies in a written agreement which may be supplied by parol evidence are not such as contradict or vary the express terms of the writing. The latter can be shown only under an offer to prove fraud or mistake at the time of the execution of the writing. The deficiencies spoken of in some of the cases are those only which are independent of the writing, and arise from the fact that the parties did not put all of their agreement in writing, but left parts of their arrangement unprovided for by it; and are also not inconsistent with the terms of the writing. We think the court committed no error in ¡rejecting the offer in the form it was presented. The cases are collected in Martin v. Berens, 17 P. F. Smith 462. But we think the court erred in permitting a recovery against one defendant in a joint .action against two. Swanzey v. Parker, 14 Wright 441, and the other cases cited, plainly show this. There is no Act of Assembly known to us which changes this familiar common-law rule. All the acts relate to the common-law [465] bar of a judgment against one joint promissor, obligor or partner, and the discharge of sureties and partners by reason of death. A judgment against one is no longer a bar against others, and the death of a party does not discharge his estate. But the legislature has not declared that when a joint contract is declared upon and proved, you can take a judgment against less than the whole number. The defence here went to the contract itself to destroy its joint character, and not to something personal to the surety, such as infancy or insanity. ' Judgment reversed, and a venire facias de novo awarded.