Keough v. McNitt

[522] By the Court. Emmett, C. J. — Tbe District Judge, as appears from the opinion on file, based the order granting to the Defendant a new trial, solely on the ground of newly discovered evidence. On the trial before the referee it became material to ascertain whether the Plaintiff had paid a certain note given by him to Cave and Dunwell. The Plaintiff swore that he had so paid, and introduced a receipt to that effect, signed by the attorney of said Cave and Dunwell. The referee found that the Plaintiff had paid said note, and he included the amount thereof in the j udgment which he reported in favor of the Plaintiff. Afterwards upon a motion for a new trial, the Defendant introduced the affidavit of Michael E. Ames, Esq., his attorney of record, from which it in substance-appears that several months after the trial of this action, the said Cave and Dun-well were severally examined as witnessess in a certain other action, in which it also became material to ascertain whether the note aforesaid was still due and unpaid ; and that upon said note being shown to said .witnesses, they each testified that it had not been paid. The affidavit further states that affiant did not know that Cave and Dunwell had so testified, or would so testify, until long after the trial of this action, and that he was informed of what they had testified to, as above stated, by Colonel John B. Sanborn, incidentally in the course of a conversation had with him. That he is informed and believes that Cave and Dunwell will so testify, if a new trial is granted ; and that he could not obtain their testimony on the trial before the referee, because he did not know the truth about the payment until long afterwards. This affidavit is defective in many particulars. The Defendant should have produced the affidavits of Cave and Dun-well themselves, or shown some satisfactory reason for not doing so, instead of contenting himself with stating what he was informed they had or would swear to. It is not a sufficient answer to this objection that their testimony in the other case, being under the solemnities of an oath, and subject to cross examination, was as good or even better than an ex parte [523] affidavit to the same effect, for we do not even know what' they swore to in the other case, except through the medium of Colonel Sanborn, who makes no affidavit himsell — who is not shown to have been present and heard the testimony, and who, for aught that appears to the contrary, may have got his information from hearsay merely. Such evidence is too remote to merit a moment’s consideration. But again, the Defendant does not sufficiently excuse his want of diligence in not producing Gave and Dunwell upon the trial. It is not enough that he did not know what they would swear to, and had reason to suppose that the receipt introduced in evidence disclosed the true nature of the transaction. The receipt and the evidence of the Plaintiff had been on file for months prior to the time of trial. The receipt was not signed by Gave or Dunwell in person, but by their attorney. They and their said attorney all resided where their testimony could easily have been obtained. It was easy for the Defendant to ascertain the exact nature of the transaction, and yet they were not called as witnesses, nor does it appear that any information has been sought from these sources even to this hour. We can tell from the affidavit neither what they have, nor what they would sw;ear to. But the Defendant insists, aside from the newly discovered evidence, that there is error in the record sufficient to warrant the order granting a new trial. He takes the position, and insisted on it throughout the trial, that the Plaintiff could not go outside the articles of co-partnership, to show that the firm agreed to assume the debts which the Plaintiff had contracted in the business prior to the formation of the partnership ; and hence that ail of the testimony of the Plaintiff as to the assumption of these debts, and all evidence as to who owned the stock at the time — how much was put in by each partner —its estimated value, and as to the firm having paid and provided for debts of this nature, was improperly admitted. The main question at issue on the trial was whither the firm had assumed the debts contracted by the Plaintiff as alleged in the complaint — not whether they were so assumed by the articles of co-partnership. An examination of these partnership articles shows that they relate simply to the manner in [524] which, the business was to be conducted, how the profits were to be divided, and the losses borne, how long the co-partnership might continue, and how it might be dissolved. As to all these matters the articles are presumed to embrace the understanding and agreement of the partners, and could not therefore be varied or added to. But they are silent as to the stock to be employed; how it had been or might be obtained; how paid for, and the multifarious other matters which would necessarily arise in managing and conducting the business. Parol evidence is admissible in cases of written instruments to prove collateral and independent facts, about which the writing is silent. Phil, on Wo., 562-3, and notes. And we think that the agreement to assume the prior debts, created in conducting the business which the partnership was to continue, is a matter independent of the manner in which the business was to be conducted, the division of profits and losses, or the continuance or dissolution of the firm, and wholly collateral to the subjects embraced in these articles. That evidence tending to show such an agreement was properly admitted ; and for this purpose not only was the positive testimony of the Plaintiff on that point receivable, but also the evidence of facts tending to confirm his- testimony — such as that of his putting in the entire stock — its estimated value —what he was paid thereon and how — on what terms he withdrew, and the fact that the firm did pay and provide for paying debts of this kind. All these, though not conclusive of themselves, yet tended to sustain the Plaintiff’s testimony, and when considered together seem inconsistent with any hypothesis other than that of an assumption of these 'debts on the part of the firm. This holding, it is believed, covers all the material objections raised as to the evidence introduced by the Plaintiff. The question asked of the witness Langley introduced by the Defendant, as to whether he had observed the word “ assumed ” in the bond given by himself and the Defendant, was an indirect attempt to vary the terms of the written instrument on which the action was brought, and was therefore properly excluded. [525] Great confidence was also expressed in tbe point, that tbe facts found by tbe'referee as to tbe payment of tbe note to Cave and Dunwell, by tbe Plaintiff, do not warrant tbe conclusion that tbe note was paid.' The referee finds that tbe Plaintiff “ paid and satisfied said note (tbe Cave and Dunwell) by giving to tbe bolder thereof bis other note for $1,120.” Tbe sum for which tbe new note was given, exceeded tbe amount found to be due on tbe old, by about $118, and to tbe extent of this excess there was a consideration for tbe payment, over and above the mere giving of a note for a precedent debt. There can be little doubt that parties may by express agreement make the giving of a note or bill of exchange for the amount of an existing debt, operate as a payment of such debt; and still less, that they may'do so where anew and additional consideration passes from tbe debtor to the creditor. Tbe only doubt heretofore has been, as to whether, without an express agreement to that effect, the mere giving of a note or bill for a precedent debt, extinguishes tbe debt; yet even in such cases, according to tbe note of tbe learned editors of tbe American Leading Gases, in which the various decisions are reviewed, “ tbe weight of authority in England and in this country is decidedly in favor of tbe proposition that tbe new cause of action arising from tbe receipt of a- promissory note or bill of exchange, for a precedent debt, is a sufficient consideration to sustain an accord and satisfaction, even where tbe parties are liable upon tbe new and old note.” 2 Amer. Leading Gases, 181. The order of tbe District Court setting aside tbe judgment and report of tbe referee, and granting a new trial, is reversed.