Foster v. Atwater

Park,.C. J. In Pike v. Brown, 7 Cushing, 133, the coqrt say:—“ The principle is well settled, that where one by deed poll grant's land, and conveys any right, title or interest in real estate to another, and where there is any money to be paid by the grantee to the grantor, or any other debt or duty to be performed by the grantee to the grantor, or for his use and benefit, and the grantee accepts the deed and enters on the estate, the grantee becomes bound to make such payment or perform such duty, and not having sealed the instrument he is not bound by it as a deed; but it being a duty, the law implies a promise to perform it, upon which promise, in case of failure, assumpsit will lie.” The doctrine of this case is well established in Connecticut, as will be seen by the following cases: Hinsdale v. Humphrey, 15 Conn., 431; Randall v. Latham, 36 Conn., 48; Townsend v. Ward, 27 Conn., 610; Elting v. Clinton Mills Co., 36 Conn., 296. [251] In the case in question, the clause in the deed to the defendant which creates the liability that is the subject of thé present controversy,'is as follows: “Said premises are conveyed subject to nineteen hundred dollars mortgages, which with accrued interest the grantee assumes and agrees to pay, and save me harmless from the same.” It is established by the foregoing cases, and is not denied by the defendant, that he did assume and promise the grantor in the deed in the language quoted, that he would pay the mortgages on the property and save the grantor harmless from the same; but he claims on several grounds that he is not liable in this action. He says, in the first place, that he is not personally liable to pay the note in suit; that if personally liable, he is liable only for such deficiency as shall remain, after resort has first been had to the land for payment of the plaintiffs’ claim; that if liable at all he is liable only to the grantor of his deed, and that too after he has been compelled to pay the note in controversy; that if the land should prove insufficient to pay the note, and the mortgagee or his assigns should sue the grantor for the balance due oh the note and recover, then the engagement of the defendant was, that he would refund the amount recovered to the grantor; that the relation of the defendant to the plaintiffs is that of surety merely, and consequently legal proceedings must first be instituted against the mortgagor, the maker, and principal debtor of the note in suit, before the liability of the defendant accrues; that there is no privity of contract to support the plaintiffs’ claim; and finally, that the contract is within the statute of frauds and perjuries. The contract entered into between the defendant and Carrington, the grantor of the defendant’s deed, must be considered in the light of the attending circumstances in order to learn what was the contract between them. Carrington had given the note, the amount of which is in controversy, and had mortgaged the land to secure the same, and was now engaged in selling the equity of redemption to the defendant. He was making an arrangement to part with all his interest in the property to the defendant, for the amount of the mort [252] gage notes on the property, and a further consideration otherwise provided for. They agreed upon the entire price to be paid. The land was encumbered by mortgage notes, and Carrington was bound to pay them. He was desirous, if a sale should be effected, to make an arrangement for the payment of the notes, thus divesting himself of all interest in the land and relieving himself of all responsibility on the notes so far as it could be done between them. It made no difference to the defendant whether he should pay the price of the land to Carrington, or to the holders of the notes, so far as the amount was concerned. But if he should pay Carrington, he would have no security that Carrington would pay the incumbrances on the property. If he should pay the holders of the notes, he would be secure in this respect. It was for the defendant’s interest, therefore, so long as he must pay the money consideration for the land to one party or the other, to pay it to the holders of the notes. These considerations constrain us to believe that the defendant entered into an absolute agreement with Carrington to pay the notes at maturity, as well as to save him harmless from them; and that such is the proper construction of the contract, there being nothing in its terms to conflict with such construction. It is true that the words “ save me harmless from the same,” standing alone, would imply an engagement of indemnity merely, but they are used in the contract in connection with words that imply an absolute engagement, and must mean that, should the defendant fail to pay the notes in accordance with his contract, and in consequence thereof Carrington should be compelled to pay them, then the defendant would make good the damage. In their connection they mean no more than the law would imply from an absolute contract to pay the notes. How could an absolute contract to pay the notes, under the circumstances, injure the defendant more than a contract of indemnity merely? In either case it would come upon him finally to pay them, or pay their amount. No question was made but that the notes were good and valid, and consequently they would have to be paid. This fact was apparent. Of what concern, therefore, [253] could it possibly have been to tlie defendant, in what form he should become bound ? Indeed it would seem that he would be anxious, inasmuch as he must pay their amount to some one, to pay it to the holders of the notes directly, and to bind himself accordingly, and not by a contract of indemnity merely. "We are satisfied that the claims of the defendant in this part of the case ai'e untenable. It appears in the case that the defendant neglected and refused to pay the note in question at its maturity. He therefore violated his contract with Carrington by this neglect, and a right of action thereupon accrued to him on the contract for a breach of the same. It is said by the defendant that Carrington suffered no damage by a breach of the contract; that inasmuch as the money was not to be paid to him, but to a third party to the contract, he could suffer no damage till he should be compelled to pay the note by the holder, and that consequently he cannot sustain an action on the contract till such time shall arrive. The defendant’s claim would he well founded if the contract was one of indemnity merely, for in that case it would not be broken till Carrington should be compelled to pay the note. But here the contract is an absolute one to pay the note at maturity, as well as a contract of indemnity, and Carrington has an interest in its performance, for by the terms of the contract his liability on the note would cease at its maturity, as it was then to be paid, but the violation of the contract continued his liability and gave him a right of action on the contract. This view of the question is fully sustained by the following cases: Lathrop v. Atwood, 21 Conn., 117; Redfield v. Haight, 27 Conn., 31; Ex-parte Negus, 7 Wend., 499; Booth v. Starr, 1 Conn., 244. It appears in the case that after the breach of the contract by the defendant, and before the bringing of this suit, Carrington assigned his right of action against the defendant and all his interest in the contract to the plaintiffs, who were the endorsers and holders of one of the notes which the defendant had promised to pay at their maturity, and which note is the one on which the present suit is brought. [254] The assignment transferred the chose in action and all Carrington’s interest in the contract to the plaintiffs, and the statute in relation to the assignment of choses in action to bona Me assignees authorized the plaintiffs to bring an action in their own names on the contract. Elting v. Clinton Mills Co., 36 Conn., 296. In relation to the claim that the contract is within the statute of frauds and perjuries because it is not in writing, it should be observed that the plaintiffs do not seek to recover on their contract relations with the defendant, but on the contract relations between the defendant and Carrington, assigned to the plaintiffs. But if the exigencies of the case require it, we think, in accordance with the intimation of this court in Randall v. Latham, 36 Conn., 48, that the contract in this case was in writing, although it was not formally signed by the defendant. It has all the certainty of being his contract that it would have had if it had been so signed. The terms of the contract are in writing, and the defendant’s acceptance of the deed, in which the contract exists, and of which it forms a part of the consideration, is equivalent to the signature of the defendant to the contract, for it can as easily, and with equal certainty, be shown to be his contract. A contract of this character is obviously not within the object of -the statute. That statute was intended to do away with the temptation to commit fraud and perjury in attempting to make one party answer for the debt, default or miscarriage of another. In cases of this character no such temptation can by possibility exist, for the case is as much beyond the reach of fraud as it would be if the contract was formally executed by the defendant. Furthermore, all the cases hold that the contract stated in a deed poll is binding between the parties. The statute of frauds makes void all contracts within its provisions; hence, contracts stated in deed polls cannot be within the statute. We advise judgment for the- plaintiffs. In this opinion the other judges concurred.