Bigelow v. Capen

Deyens, J. Parol proof of extrinsic circumstances may be admitted to apply a description to the subject matter of a contract. If it appears that the description is not in all respects accurate, it may to a certain extent be rejected, and what remains alone regarded, if that be sufficient to identify it. Pierce v. Parker, 4 Met. 80. Hall v. Tufts, 18 Pick. 455. Baxter v. McIntire, 13 Gray, 168. Where a note described in a mortgage of personal property has been renewed, this fact may be shown, and the security applied to the note as thus renewed. Barrows v. Turner, 50 Maine, 127. Conversely, where there has been a substitution for the original note which was the foundation of the liability of the mortgagor, and the parties to the mortgage describe the original note, either by accident or by mistake as to the liability, this error may be shown, and the security applied to the existing liability. In the case at bar, the original notes indorsed by the plaintiff were dated the latter part of October, 1884. These notes had been renewed once or twice, the plaintiff indorsing the renewals. It was competent for the plaintiff to show, as he did, by evidence, that, at the date of the execution of the mortgage, on October 1, 1885, the liability intended and understood to be secured by the mortgage was that on the then outstanding indorsed notes; and that there was no other liability to the plaintiff, the one thousand dollars mentioned in the condition being the amount of the two $500 indorsed notes. It was therefore a mistake, and an erroneous description of the notes intended to be secured, to state them as of the date of October 27, 1884, arising probably from the fact that the transactions between the plaintiff and Burleigh, the mortgagor, then commenced ; but this would not invalidate the security, when it was shown that the liability of the plaintiff originated with them, and that the later notes were merely a substitution. Nor would it invalidate the plaintiff’s security that the obligation of Burleigh was one to indemnify him for indorsing, rather than one to pay him the notes then outstanding. The plaintiff would, it is true, have no demand against Burleigh except after payment of them by _ himself. The plaintiff was the promisee of the notes, and it was the duty of Burleigh to pay them. If in form it is stated in the mortgage that Burleigh agrees to pay the 274 plaintiff the notes, rather than to indemnify him against being compelled to pay them, the real character of the transaction will, as between the parties, be regarded. Nor is any injury done to third persons. They are informed of the exact amount of the claim of the plaintiff upon the property of his and their debtor, even if such claim is not described with entire accuracy. There is no evidence that, by this, any person has been misled; and we have no occasion to consider whether there may not be cases where, if one were misled by the carelessness or inaccuracy of another, the person so misleading might not be estopped thereby from proving the exact character of his transaction with the mortgagor. As the mortgagor was bound to indemnify the plaintiff for signing these notes, it may well be contended that he properly included the fees for protest of the notes in his demand upon the defendant, and in stating the amount due to him, as he was compelled to do, under the Pub. Sts. c. 161, §§ 74, 75. This demand was substantially correct, and it is not vitiated by a slight mistake, even if such was made. Harding v. Coburn, 12 Met. 333. A demand is also good, though made for an amount larger than is due, if the amount due exceeds the value of the property. Clark v. Dearborn, 103 Mass. 335. An examination of the verdict shows such to have been the fact in the case at bar. Exceptions overruled.