Woodward v. McGaugh

Napton, Judge, delivered the opinion of the Court. Woodward and Thornton, administrators of W. W. Mauzey, deceased, brought an action of assumpsit against the defendants, McGaugh, Brown and Davis, upon a promissory note executed by them to plaintiffs, for $175 56¿, and payable twelve months after date. Process was served on McGaugh and Brown only. At the December term, 1840, McGaugh and Brown pleaded jointly the general issue: but afterwards, at the same term, withdrew this plea, and pleaded severally the general issue, with notice of set-off. Each of these set-offs were debts due by the intestate, — McGaugh’s amounting to one hundred and sixty-two dollars and thirty-seven cents, and Brown’s to three dollars and sixteen cents, both of which had been duly allowed by the County Court against the estate of Mauzey, as alleged in the notices of set-off. A motion was made to set aside these pleas, but the same was overruled by the court; and afterwards, as appears by the entries on the record, the 'defendants withdrew their pleas as to McGaugh, and judgment by nil dicil went against him, and the issue between Brown and the plaintiffs was submitted to the court, and the court, upon hearing the evidence, found for the defendant twenty-seven dollars and eleven cents damages. Judgment went accordingly. A motion for a new trial was made, but overruled. It appears, from the bill of exceptions, that the note sued on was given in consideration of goods purchased at the sale of the effects of W. W. Mauzey, deceased, by his administrators, and that Brown was security in the note. Proof was introduced to show that Brown signed the note upon the representation of Woodward; that the estate of Mauzey was indebted to McGaugh in a larger sum, [164] and. his promise that he would allow the same as an offset against the note given by McGaugh, Brown, and Davis. It is difficult to perceive upon what grounds the judgment of the Circuit Court, in this case, was rendered. It would seem that the security, not only was relieved from his liability on the note which he had executed, but recovered damages to the amount of twenty-seven dollars and eleven cents, against the administrators. The set-offs in this case were inadmissible. The second section of the act regulating set-offs provides, that in suits brought by administrators and executors, debts existing against their intestates or testators, and belonging to the defendant at the time of their death, may be set off in the same manner as if the action had been brought by and in the name of the deceased. This section was only designed to be applicable in suits brought by executors and administrators for a cause of action accruing in the life-time of the testator or intestate. To allow such set-offs in actions brought by administrators or executors, on a cause of action accruing to them, as executors or administrators, since the death of the testator or intestate, would contravene the policy of the law regulating the distribution of estates. It would place it in the power of a creditor to control the order in which assets are directed to be administered, and enable him, by purchasing property at the sale of decedent’s effects, to pay himself, to the prejudice of creditors entitled to priority. The plea of McGaugh being withdrawn, and a judgment against him by nil elicit, the judgment in iavor of Brown, the co-defendant, appears unauthorized by any thing on the record. Assuming that the representations- and promises of Woodward released Brown from his liability as surety, it is not perceived how that could entitle him to a recovery of twenty-seven dollars and eleven cents. The representations of Woodward were, however, inadmissible. Where-a contract is reduced to writing, the presumption of law is, that the writing contains the whole contract. Here is a promise to pay, on a day specified, a certain sum of money, for value received, and the obligor offers to prove that there was an understanding and agreement between him and the obligee, that the obligee would not hold him responsible on that promise. For this is the amount of the conversation between Brown and Woodward on that subject. This would be to permit a party to contradict his written agreement. — -Curtis vs. Yvakefield, 15 Pick. Rep., 437. Judgment reversed, and cause remanded.