The opinion of the court was delivered by
Williams, Ch. J.This action is brought to recover the amount of one of six promissory notes, executed by the de*740fendant, Ethan H. Nichols, and Myron S. Kimball, to the plaintiff, on the 12th of March, 1834. Two of the notes were heretofore sued in the name of Pinney as indorsee of M’Gregor, in the county of Orleans, and a decision was had in that suit, which is reported in 13 Yt. R. 623. The defence is not presented, in this case, in as favorable a point of view as it was in that. Indeed, one strong, prominent fact, which appeared in that case, was not proved in this, viz : the insolvency of Nichols, and his agreement to indemnify the defendant from the note now in controversy, and the other notes.
From the case as now presented, we cannot see that the defendant either proved or offered to prove any defence whatever to the notes.
The defendant, when he sold his interest in the mill to Nichols, in Feb’y, 1836, did not require Nichols to indemnify him against the six notes which had been executed to the plaintiff, and for any thing which appears in this case, the defendant may have received of Nichols the full value of the premises, viz: the third owned by him ,and which he deeded at that time. The testimony did not prove, or tend to prove, that the note in suit had ever been paid by Nichols, or that any contract had been made between Nichols and the defendant, Bugbee, with the assent of M’Gregor, by which Bugbee was to be exonerated from the payment of the notes, and the plaintiff to look to Nichols for the pay. This of course disposes of the defence.
The agreement, which was proved by parol, made on the 5th March, 1838, was for the benefit of Gilman, principally, to which the defendant was not a party, and moreover was entirely controlled by the contract, evidenced by the receipt executed in September, 1838, by the plaintiff to Nichols.
The bill of exceptions is not drawn up with that precision and accuracy which is desirable. The practice of detailing, in the bill of exceptions, all that passes at the trial, is too common. It would be better if the judges who allow these exceptions, — and we are all faulty in this particular,-* — would strike out all the superfluous matter which is usually inserted by the counsel, inasmuch as it tends rather to confuse and obscure the real point in controversy.
*741The only questions of law which were decided by the court below appear to be these, that the receipt executed by the plaintiff to Nichols, in September, 1838, was the best and only evidence of the contract between them, and unless this was rescinded, and another one subsequently made, as contended for by the defendant, it could not be altered, varied or explained by parol evidence, and further that Nichols had an unquestionable right to receive the pay on the notes given him by Gilman, or control, or dispose of them as he thought proper, as the defendant was not proved to be a party to, or any way interested, legally, in the transactions between the plaintiff and Nichols and Gilman. Whether on proof of other facts, the defendant can succeed either at law or equity in compelling an appropriation of the avails of the Gilman notes to his benefit, is not a question now before us.
The judgment of the county court is affirmed.