Green v. Randall

The opinion of the court was delivered by Royce, J: The parol evidence which was received subject to the objection and exception of the defendant it is claimed was inadmissible for three reasons: First, that the trade that was made was evidenced by the writings executed between the parties, and parol proof was not admissible to vary, add to, or diminish them. The objection embraces a well recognized and familiar principle of the law of evidence, and if the evidence offered, in legal effect, comes within it, it was error to admit it. But we do not understand that the evidence had that effect. Its tendency was to eatablish an agreement collaterally connected with the sale of the farm and personal property as shown by the deed, notes, and bill of sale, and not to contradict anything that was contained in them, and it was admissible for that purpose. Buzzell v. Willard, 44 Vt. 44, and cases there cited. Second, that the promise, if any was made, related to a sale of an interest in land, and hence was within the Statute of Frauds. This objection is not well taken. The evidence was offered to prove a contract on the part of the defendant to remove an existing incumbrance that rested upon the land, and such a contract is not, in legal contemplation, a contract for the sale of any interest in the land. Third, that the contract was simply to pay the mortgage note of Dingwall, and hence was within the Statute of Frauds; and that the promise of the defendant was without consideration. The contract that the evidence tended to show was not in terms to pay the debt of another. The contract was susceptible of full performance without a payment of the note given by Dingwall, and hence was not within the statute; and the evidence preceding that which was objected to, in our judgment, tended to show a sufficient legal consideration to support the promise. The parol evidence that was offered by the plaintiff, tended to show that at the time the trade was made, and as a part of it, the [72] defendant agreed to remove or discharge the $7,000 mortgage that then rested upon the farm, so that it should be no incumbrance upon the same. The evidence on the part of the defendant tended to show that an arrangement was made at the time the trade for the farm and personal property was made, to provide for the payment of-said $7,000 claim and the discharge of the mortgage given to secure it, and that the arrangement was, that the defendant was to place the notes for $5,000 given by the plaintiff to the defendant, and the mortgage given to secure them, with the National Life Insurance Company, who then held the $7,000 note given by Dingwall, as collateral security for the .defendant’s note of $5,500 then held by said company, and that the payments to be made by the plaintiff on his notes should be applied on the $7,000 note, and that when the plaintiff should pay his notes, the company and the defendant would discharge the mortgage given to secure the $7,000 note, and that the plaintiff did not pay his notes according to their tenor, and for that reason, and because he was committing waste upon the mortgaged premises, the company brought a petition to foreclose the mortgage given to secure the $7,000 note, and obtained a decree, and, the defendant failing to redeem, acquired his title in the premises. It was admitted by the defendant that he was to discharge the mortgage that then rested upon the premises ; the only controversy was as to the manner in which that should be done. The exceptions show that the evidence of the plaintiff tended to show that the defendant agreed to remove or discharge said mortgage so that it should not be an incumbrance on the farm. The evidence of the defendant tended to show, in legal effect, the same agreement, and the exceptions do not show that there was any conflict in the evidence -upon that subject. If the agreement was as the defendant’s evidence tended to show, it is clear that the plaintiff could not rocover back the consideration paid, for the reason that there had been no breach of the agreement at the time the suit was commenced, and the defendant had the right to have the question submitted to the jury as to whether the agreement was as his evidence tended to show. It does not appear that it was so submitted. All the exceptions show that the court said upon [73] the subject was, that if the jury found the parol contract proved as claimed by the plaintiff, and there was a breach of the same on the part of the defendant, the plaintiff would be entitled to recover ; and inasmuch as the exceptions do not show that the parol contract which the plaintiff’s evidence tended to show, was so far variant from the contract which the defendant’s evidence tended to show as to give the plaintiff a right of action if proved, we do not think the charge of the court was such a' presentation of the case and the evidence to the jury as the defendant was legally entitled to. The last request of the defendant to the court should have been complied with, with the qualification that the jury should find the contract to have been as the defendant’s evidence tended to show. There is nothing in the exceptions that would justify the inference that anything further was said by the court than what there appears. Judgment reversed, and cause remanded.