Marshall v. Baker

The opinion of the Court was delivered by

Shepley J.

The witness, Cutler, states, that the promissory note in suit, was made by Ebenezer Vose and the defendant, as his surety, to the plaintiff to secure him for money which he had paid as bail for Thomas Arnold. Whether the plaintiff became bail at the request of Vose, and received the note for the whole, amount paid, or only jointly with Vose at the request of Arnold, and received the note for the half, which .Vose should have paid, the case does not clearly state. The testimony of Cutler would seem rather to favor the former supposition, for he does not speak of the note as given for any portion of the amount paid, but “ to secure him for the money he had paid as Arnold’s bail.” Cutler also states that Baker asked Marshall, that if he would show him property pf said Arnold he would give him up said note, and said Marshall replied, that lie would.” ll. is insisted, that this testimony was inadmissible because it varies the terms of a. written agreement and makers a difiero •! contract for the parties. This parol agreement is stated by Cutler to have been made t; after said note was signed and before they separated.” The rule, that parol evidence is not to be received to vary a written instrument, excludes all previous and contemporaneous declarations, but it does not exclude independent and collateral agreements made after the contract is completed, whether on the same occasion or at a subsequent time. Such testimony is not used to vary the terms of the written contract, but to prove, that it has become inoperative by reason of a subsequent and independent one. The plaintiff, after he had obtained the note, might agree to deliver it up on the performance of some act by the defendant, and the testimony that he did so, could not be legally excluded. And such an agreement, proved and executed on the part of the defendant, would prevent a recovery on the note.

It is said, that the presiding Judge was incorrect in assuming, that the note might have been taken as collateral security for the amount, which the plaintiff had paid for Arnold, and that he should not have submitted it to the jury, whether they would so find. It appeared from the testimony, that the plaintiff had consented to treat it as collateral by making an agreement with the defendant to proceed against Arnold on his original claim, and by actually bringing a suit against him after receiving the note and collecting a part of the amount of it. This was sufficient to justify, if not to require the submission .of that question to the jury.

The instructions relating to the attachment of the property and to the adjustment of the suit submitted the question properly to the jury, whether the whole or a part only of the debt had been paid. The testimony, that the whole was paid, is not very satisfactory. It rests principally on the testimony, that property of sufficient value to pay the debt and costs was attached, and that the suit was settled by the plaintiff or by fcis order. It might not be in the power of the defendant to prove the terms of that settlement. While the plaintiff might be presumed to be able to prove the amount, which he actually received. The receipt of the 9th of September, is supposed to exhibit it, but it does not without explanation necessarily prove, that no more was obtained by that suit and attachment. The defendant having shown, that sufficient property was attached and that there was apparently no difficulty in causing it to be applied to the payment of the original claim of the plaintiff, and that he caused the suit to be settled; the Court is not authorized to set aside the verdict, for there is no satisfactory evidence that justice has not been done.

Judgment on the verdict.