Mager v. Hutchinson

The Opinion of the Court was delivered by Treat, J.* This was an action of debt commenced by Hutchinson against Mager and De Lassoule. The declaration contained two counts; the first, on a promissory note; the second, for money had and received. Process was served on De Lassoule only. He filed a plea to the first count, alleging in substance, that at the time of the execution of the note it was understood by the parties, that De Lassoule was to be liable for its payment only in the event that it could not be collected of Mager; and then averring that no effort had been made to coerce payment from Mager. There was a demurrer to this plea, which the Court sustained. A judgment was then entered in fafor of the plaintiff for 0206, in the form of a judgment in assumpsit. De Lassoule prosecutes an appeal. The decision of the Circuit Court sustaining the demurrer to the plea is assigned for error. A plea is to be construed most strongly against the party pleading it. On this principle, as well as from the phraseology of the plea, we are bound to regard the agreement set up by it, as one resting in parol. If otherwise, the pleader should so have averred. By this plea, the defendant seeks to avail himself of a parol agreement respecting the note, made at the time of its execution. The rule of law is, that where a contract is reduced to writing, the writing affords the only evidence of its terms and conditions. It cannot be contradicted or varied by the previous or cotemporaneous verbal agreements of the parties. These are all regarded as merged in the written contract. 1 Greenleaf’s Ev. § 275, et seq.; Lane v. Sharp, 3 Scam. 556. The note declared on is on its face the joint obligation of Máger and Dé Lass.qulé. Both are liable to the payee as principals. The parol agreement would most mátérially change the terms of the contract; and the rights and liabilities of the parties. Tt would make it the note of Máger only; D.e Lassoule would be but á guarantor, responsible for its payment only on the happening of a contingency. The plea is clearly bad, and the Circuit Court committed no error in sustaining the' demurrer.' "It is -contended^ that the plaintiff discontinued his suit, by omitting to take judgment by nil dicit on the second count of the declaration, before tendering a demurrer to the plea, and the case of Warren v. Nexsen, 3 Scam. 38, is cited to sustain This'position. In that case, the pleas answered but a part of the declaration, and after issue on the pleas, the defendant moved for a discontinuance. The plaintiff at the Same time entered a cross motion for judgment by nil dicit on so much of the judgment as remained unanswered. The Circuit Court decided that the action was discontinued, and overruled the cross motion. This Court reversed the judgment on the ground, that the plaintiff had the right to correct his error at any time before final judgment, on the payment of costs, and that the cross motion was, therefore, properly made. It was not decided in that case, that the failure to take the proper judgment by nil dicit, could be taken advantage of on error. We are of the opinion that it cannot, where, as in this case,'the objection was not made in the Circuit Court. It is too late to raise it for the first time in this Court. If insisted on in the Court below an opportunity is afforded the plaintiff of avoiding the effect of his omission, either by taking the.appropriate judgment on the part of the declaration unanswered, or by withdrawing this portion of his declaration entirely from the cause. It is assigned for error that the judgment is erroneous. This objection is fatal. This Court has repeatedly decided that it is erroneous to enter up judgment in damages in an action of debt. The judgment in this form of action must be for the amount of the original indebtedness established on the trial, as the debt, and the damages for the detention thereof, which is usually the interest. The judgment ought not to he general for the aggregate of the principal'and interest, but must specify what portion is the debt, and what.is given as damages. The judgment in this case is for damages only. This was no doubt the error of the clerk, and it is to be regretted that the judgment must be reversed. This is not one of those cases in which the proper judgment can be entered in this Court. The evidence on which the judgment wás rendered is not preserved in the record. There is no way of ascertaining what portion of the judgment was for -the debt, and what for the damages. The "case of Heyl v. Stapp, 3 Scam. 95, is to "the point. The judgment of the Circuit Court is reversed with costs, and the" cause is remanded for further proceedings. ’ Judgment reversed. Footnotes [*] Wilson, C. J., and Lockwood, J., did not sit in this case.