Comstock v. Savage

Hinman, J. The action is against the defendant as . indorser of the note of B. E. Mann & Co., which is stated in the declaration to have been made payable at the Farmers and Mechanics’ Bank in said Hartford, and as the note when produced in evidence appeared to be payable at the “ F. & Mechanics’ Bank,” the defendant raised the question of variance between the declaration and the proof, and objected to the parol evidence introduced by the plaintiff, for the purpose of showing that the letter F.' was intended as a mere substitute for the word “ Farmers,” and consequently that by the legal effect of the instrument it was in fact made payable at the Farmers and Mechanics’ Bank in Hartford. We think the superior court was correct in admitting this evidence, and in submitting the question to the jury to say whether the note was in fact payable at the Farmers and Mechanics’ Bank, as averred in the declaration. We suppose that ever since the remark of Lord Mansfield in Bristow v. Wright, (Doug., 665,) in speaking of what part of a deed a party is bound to set forth in his declaration, that “ it will be sufficient to state the substance and legal effect ” of an instrument, this mode of declaring upon a written instrument has generally been considered as not only sufficient, but upon the whole the best. As intimated in that case, it is the shorter mode, and is not liable to misrecitals and technical mistakes. And the legal effect of this instrument depended upon the meaning which the parties attached to the letter F. as used in it. It was shown that there was no such institution as the “ F. and Mechanics’ Bank.” This made the instrument ambiguous ; and it is familiar law that an ambiguity, which does not appear upon the face of an instru [191] ment, but is raised by parol evidence, may also be explained by parol. When therefore it is shown that, although there is no such institution as the F. and Mechanics’ Bank,” yet there is a well known bank which is commonly described in that way, and which the parties themselves were in the habit of so describing, it is made perfectly clear what they must have meant. It is hardly necessary to refer to authorities on this point. They are very numerous and entirely satisfactory. We have several cases in our own reports which support the rulings at the circuit. Phelps v. Riley, 3 Conn., 266. Chesnut Hill Reservoir Co. v. Chase, 14 id., 123. Nichols v. Lewis, 15 id., 137. Ayres v. Weed, 16 id., 301. Walbridge v. Arnold, 21 id., 424. There was evidence in the case tending to show that the note was paid, or that the legal title to it had passed from the plaintiff, since the commencement of the suit, and in either event it is obvious that the suit could no longer be maintained. The plaintiff’s counsel, however, insisted that the transaction out of which the claim of payment originated, was a mere executory agreement on his part to become the purchaser of the judgment which should finally be recovered against the defendant. And, as security for the fulfillment of this agreement, he was to deposit, and did then deposit in the hands of the plaintiff’s counsel, a sum of money equal to the principal and interest due on the note, and the taxable costs which had accrued in a suit against another indorser of the same note, with the understanding that the money might be paid over to the plaintiff, and that the suit should be conducted thereafter without expense to the plaintiff; and the money was accordingly immediately thereafter paid over to the plaintiff. It is true this agreement was entered into by the counsel of the other indorser of the note, and was done for the purpose of saving him from the eventual payment of the note. It was done however without any authority from him, and without his knowledge; and therefore done by a party under no obligation whatever to pay the note. Now an executory contract, to purchase [192] the future judgment that was expected to be recovered in the suit, is a legal contract, which the parties had a right to make; arid might be, as it was claimed it was in this case, founded upon entirely equitable as well as legal considerations. Then if such a contract could be made which would not amount to payment or to a transfer of the legal title to the note, the question whether such a contract was made and the money advanced as security under it, or whether it was advanced as payment of the note, would be a question of fact depending upon the intention of the parties. As such it was, we think, correctly submitted to the jury, whose finding upon it ought to be conclusive. We do riot therefore advise a new trial. ' In this- opinion the other judges concurred. New trial not advised.