Hoyt v. French

Eastman, J. If, on the return of the report of an auditor, it appears that the case was an improper one to be submitted, or that incompetent evidence has been received, or that an informal and illegal report has been made, the proper practice is to move to recommit or reject the report, according to the nature of the objections. A case improperly referred to an auditor, or a report illegally made, cannot go to the jury for their consideration. Brewster v. Edgerly, 13 N. H. Rep. 275; Bartlett v. Trefethen, 14 N. H. Rep. 427. But these questions are not now before us. The question for our decision is, whether the plaintiff, upon the facts presented in the report, can have judgment against Moses French; and although the preliminary [202] questions might have been raised in the court below, and transferred to this court, if necessary, for our determination, yet, inasmuch as they have not been sent here, we shall not consider them. For aught that appears, they may have been raised and decided in the court below, and no exception taken to the decision ; or they may have been waived there. Besides, where questions of law are raised by an auditor, and submitted to the court for consideration upon the evidence of facts reported, and this course is not objected to by the parties, the court will regard the case as an agreed statement of facts, and will examine and adjudge upon it accordingly. Bartlett v. Trefethen, 14 N. H. Rep. 427. It was within the discretion of the auditor to admit Moses French as a witness. An auditor may receive the testimony of either party to the suit. Stevens v. Hall, 6 N. H. Rep. 508; Mann v. Loeke & a., 11 N. H. Rep. 246. Such is the general practice; but if it should appear that injustice had been done by the admission of the party to testify, the court could order the report recommitted. One of the parties to a suit might be an administrator or executor, and to admit the opposite party to testify to facts which were known only to himself and the deceased, might in some instances do much injustice. But where the parties are both living, as in this case, and both can testify to the matters in controversy, we can see no good reason for interfering with the ordinary rule. The evidence tending to show a contract to apply.the first money paid by Amos French to the payment of the note in suit, was incompetent. The contract, if any, was contemporaneous with the signing of the note, and its effect was to control, by parol evidence, the terms of the note. The evidence tends to show that the note was not to be paid according to its tenor, but out of certain funds; and that the plaintiff was compelled to apply the first money that came to his hands from the defendant, Amos French, to the payment of this note. Moses French testifies that at the time he signed the note, this agreement was entered into, and he now contends that the failure to keep the [203] agreement discharges him from his liability on the note. But the principle is well settled that, where a contract in writing is executed, any parol agreement made at the time, varying the terms of the contract, cannot be shown by the parties thereto to change the contract. This agreement was made at the time the note was executed; it varies the terms of the contract, and the evidence to show it was inadmissible. Another question raised by the report, is, whether there was such an agreement to give day of payment to Amos French as would discharge Moses, the surety. An agreement to extend the time for the payment of a note must be upon some consideration, and for a specified time, otherwise the surety will not be discharged. The mere declaration by the creditor that the matter may rest, or that he will not insist upon immediate payment, or any other similar declaration, even specifying a time, does not constitute a binding agreement for delay. Notwithstanding a transaction of that character, the debtor may pay, and the creditor may collect, at any time. Fowler v. Brooks, 18 N. H. Rep. 240; Bailey v. Adams, 10 N. H. Rep. 162. The conclusion arrived at in McQuesten v. Noyes, 6 N. H. Rep. 19, is not so satisfactory as we could wish; and were that precise question now before us, we are not prepared to say that we should arrive at the same result. The agreement for delay must be upon some consideration, and it must be such as binds both debtor and creditor. But in this case there is no consideration specified nor any time fixed; no agreement made; nothing that shows the principal or surety might not at any time pay the note, or the creditor collect it. The evidence is entirely too loose to show any contract for delay. Both of the defendants are liable for the amount of the note, and there must be judgment accordingly. Judgment on the report against both defendants.