Commonwealth ex rel. Mishey v. Brenneman

The opinion of the court was delivered by

Rogeíís, J.

This was an action of d.ebt on recognisance, to which the defendants pleaded payment and release. Replication, release without consideration, fraudulent and void, non solverunt and issues. To maintain the replication, the plaintiffs offered to prove, that Henry Brenneman procured the release to be drawn before the time of execution, as executed for full consideration, when he hád not the consideration money to pay: That to induce Christian Longenecher and wife to execute the. release, he artfully and fraudulently represented, that they should execute it without receiving the purchase money: That he would pay them afterwards, and that they might rely upon his so doing, if they would release: That Christian Longenecher and" wife, relying on the assurances so given, executed the release, without receiving'one cent of consideration: That Henry Brenneman died in July, 1822, and that upon notice being given to his administrators; they have retained the amount of the claim, and now have it in their hands: That on the same day, or immediately after, Henry Brermeman told Christian Longenecher that he had some claim against his wife: That he should come to his house shortly, and would settle with and satisfy him, which he never did.”, ' '

It appears that Mraham Schock, who had purchased the share taken by Jacob, at the appraisement of the real estate of his father, Henry Brenneman, refused to pay the purchase money, unless all the heirs would execute releases. In pursuance of this family arrangement, and to accommodate a relative, they agreed to execute them, and to substitute a promise to pay at a future day. This, it is contended, supports the replication of fraud and want of consideration. Without resorting to the technical importance'attached to an- instrument under seal, here was a sufficient consideration to support an action on the promise to pay. ' By the contract, which the parties had an undoubted- right to make, one species of debt is substituted for another. In a suit on the promise, Henry Brenneman could not defend himself upon the allegation of a want of consideration. Such a transaction as this is by no means uncommon, where, by the release of an heir, you enable another to dispose of his property, which he would otherwise be unable to effect. If Christian ■Longenecher and'wife have .lost their share of the. estate, it is certainly a misfortune, but one, however, of their own choosing; and I am at a loss to see any thing in the transaction, which supports the replication of fraud. The court excluded the testimony, because not supporting the issue; it could have no legal effect. The amount of the plaintiffs’ offer is, to prove a nori-compliañcé with the contract of Henry, that he would pay the amount of Christian Longenecher’s wife’s share, in consideration of the execution of the release, and for this the law has provided him his appropriate remedy. There is no doubt, that in the breach of promise, Henry Brenneman, in a moral point of view, was guilty of fraud; but it was no more fraudulent than any other breach of trust, or of promise. There was no false represention, or concealment of any -existing fact, which constitutes the legal idea of fraud; for there is no doubt, (at least the contrary is - not'alleged,) he religiously intended to perform his part of the contract, but was prevented by the pressure of misfortune, or some casualty, which usually oeeurs in cases of those who are unable to comply with their engagements. There is-no pretence to say, that he used any surreptitious or undue means to obtain the release, or that he practised such acts, or made use of such false tokens or finesse; as usually lay the foundation of an action of deceit. Boyd v. Stone, 11 Mass. Rep, 347. If a man purchase ahorse, on a promise to pay in three days, a.failure to pay at the time does not annul the contract, and revest the right of property; but the remedy is a suit for the purchase money. . Nor here, can the non-compliance of- Henry Brenneman, with his part of the contract, remit the parties to their original-rights, for by the release, the recognizance is extingished. It is impossible to avoid seeing, that this is a contest among creditors. Henry Brenneman is dead, arid I- presume his estate insolvent; as, otherwise, the case is not worth pursuing, for the assignees would have the same relief in a suit on a.simple contract as on the recognisance; for the debt remains, -if not.already paid, although the recognisance, be extinguished.

In connexion with the evidence contained in the first bill of exceptions, the plaintiffs further offered to .prove, that the release given in evidence by the defendants, was induced by the purchaser of Jacob’s share refusing to pay without a release being executed by all the heirs; and that they agreed to meet the wishes of the purchaser, by executing the release, upon his paying the purchase money of the share he had bought: That there was a full understanding among the heirs, that it was to operate in favour of the purchaser only; and that, as among themselves, the release, though in form, absolute, was to be, and remain inoperative, until the persons taking the land, paid to each of the heirs the.ir share in the valuation money: That under this understanding and agreement between the heirs, the release was executed, upon the payment of the money by Mr. Schock only: That Henry Brenneman did not pay any thing to any of the heirs, when the release was executed, but that payments have been made to all the heirs but Christian Longenecher and wife, to whom no part of her share has been paid.

Whether a Court of Chancery would set up this parol agreement, so as to consider the release operative against Henry Brenneman and his heirs, it is not necessary to decide. It is, however, very clear, that a chancellor would not interpose where the rights of third persons would be affected. .It would be a sufficient answer to a bill for relief, that the interest of others was concerned, whether they were judgment or simple contract creditors, purchasers, or terre-tenants of the land. There is no difficulty in perceiving the object in view, in the course pursued by the plaintiffs. If they could sustain their suit on the recognisance, they would have a lien on the fund substituted for the land, and now in the hands of the administrators, and this to the exclusion of the other creditors. Equity does not favour secret agreements, at the expense of those who neither know, nor have an opportunity of knowing of their existence; and we have ever been, and I trust, ever will be, extremely cautious in giving effect to secret family arrangements, except as against the parties themselves, or those who may be cognisant of the nature of the transaction. ■

The next bill of exceptions raises the question, whether, on a general offer to prove misrepresentation and fraud, a party can be compelled to specify the evidence ,on which he relies, to establish fraud. A history of this case presents a strong argument in favour of the power of the court; and indeed, of its necessity, in preventing the waste of time in hearing testimony, which, if permitted to be given, can have no effect, but in perplexing and bewildering the jury. The plaintiffs had made two specifications of matters, which they alleged, supported the replication, and. these were adjudged, and rightly, as insufficient for that purpose. They then make an offer, in as general terms as possible, by which they seek to do that indirectly, which they had been prevented from doing directly. If this can be done, the decision of the court may at any time be avoided,'by the use of general terms, which give in truth no information to the court, and which do not enable them to judge of the relevancy of the testimony, which is their exclusive province. Had the plaintiffs undertaken' to set out the evidence, we ars warranted in believing it would have contained but a repetition of what had already been passed on by the court, .and adjudged .incompetent. It would be but a mockery of the authority of -the court, to suffer its decisions to be evaded in this way. This attempt, by which counsel endeavour- to take from- the court their legitimate •authority, and go to the jury, on vague and indefinite notions of the justice or hardship of a particular' case, has' been often made, and as often resisted. It has been argued,-that witnesses sometimes refuse, except in court, to disclose the evidence which they .intend to give. This does sometimes happen, but this is so,rare an occurrence, as not to deserve the importance which has been attached to it by the counsel who concluded the argument for the.plaintiffs in error. It is, however, a sufficient answer to'this argument, that this does not appear to be the reason the plaintiffs refused to comply with the directions of the court. When a witness refuses to disclose his knowledge, and thé. refusal of a party to specify the evidence on which he relies proceeds from inability, and not design, he will then be in time to claim the benefit of an exemption from the rule, under the special circumstances of his case.

Judgment affirmed.