Logan v. Farmers' Bank — 6 Del. 35

Majority

p. 35

John Logan v. The Farmers' Bank.

Headnote

A general warrant of attorney to confess judgment on a bond, cannot be varied or restricted by a paroi agreement not to enter it in this State, and no action will lie on such agreement.

This was an action of assumpsit to recover damages for the breach of a paroi agreement not to enter judgment on a bond which the plaintiff had given to the defendant, with warrant of attorney to confess judgment thereon. ' The plaintiff had indorsed a note in bank for the Messrs. Young before their failure, and after that executed a bond and a mortgage on a farm in Maryland to the bank to secure the payment of it, with the agreement, as it was alleged, that the bond was not to be entered in this State. Neither could be entered, or recorded, however, in Maryland, for the want of a stamp under the statute of that State; they were then cancelled, and others were executed with the like agreement and duly stamped, and the mortgage was entered there. The warrant of attorney was general, and authorized the confession of judgment on the bond in this State or elsewhere. Owing to some misunderstanding between the parties, and the failure of the bank to realize the debt on the mortgage out of the estate in Maryland, the bond was afterwards entered in this State, and sundry writs had been issued upon the judgment entered thereon, by reason of which the plaintiff complained that he had been prevented from selling certain lands in this State, and had been greatly damaged, &e.

A witness was called to prove the agreement.

Bradford, for the defendant,

objected to the admissibility of the testimony, first, because paroi evidence was inadmissible to vary or contradict- the authority of the" warrant; and, secondly, upon the ground that it was an agreement touching an interest in or concerning land.

p. 36

William H. Rogers, for the plaintiff,

replied, that it was not an agreement concerning land, but in regard to a judgment bond, and insisted that it'was competent to limit and qualify the authority of a general warrant by paroi.

held, that it was not competent to vary or restrict the authority of a general warrant of attorney by a paroi agreement, and no action would lie on such an agreement.

The plaintiff was nonsuited.