Majority
p. 601Hull vs. Adams.
Headnote
The legal effect of a transaction as manifested by several distinct written instruments relating thereto, all executed at the same time, can no more be varied or contradicted by parol evidence than if the whole were embraced in one instrument.Accordingly, the plaintiff being the assignee of a lease, and bound by covenant with the lessee to pay the rents, &c. assigned the same to the defendant by writing expressing a consideration of $3000; whereupon the latter obligated himself by another writing to perform all covenants which the plaintiff had entered into with the lessee, and also executed to the plaintiff, at the same time, two notes, one promising to pay him $2000, and the other $1000: Held, that the writings taken together imported an undertaking by the defendant to pay the whole rent, and therefore evidence could not be received to show a contemporaneous parol agreement by which the- plaintiff was to pay a part, he accepting the $1000 note for his indemnity in so doing.
Otherwise, however, had the question stood solely on the consideration clause in the . assignment.
Motion to set aside the report of referees. The action was debt brought by Wager Hull, jun. to recover against the defendant Abel Adams, for services and board of the defendant’s workmen; also upon a note under seal, whereby the defendant promised to pay the plaintiff $2000 on the 1st November, 1840, with interest after the 1st May, 1839. The cause was referred-to referees.
The principal question arose upon the defendant’s claim to be allowed $1000 as for money paid, &c. for the plaintiff; the facts in relation to which were as follows:
On the 5th of November 1837, one Cocks, by indenture, demised to Samuel C. Adams a brick-yard and dock for the term of twenty years from the 1st of May, 1838, at an annual rent of $1000 per annum, payable on the 1st of May, &c. Samuel C, Adams, on the 11th of December, 1837, assigned his term to Hull the plaintiff, subject to the rents and covenants in the indenture, which the plaintiff covenanted to perform. On the 12th of January, 1839, the plaintiff, by writing, assigned the whole term (excepting a sub-lease of part) to the defendant,- subject, as therein ex-'
p. 602
pressed, to the rents and covenants in the lease. This assignment was under seal, and purported on its face to have been given in consideration of $3000 in hand paid, and in consideration of the defendant’s having covenanted to perform all the covenants which the plaintiff was bound to perform by his covenant with Samuel C. Adams. On the same day and at the same time the following writings passed between the plaintiff and defendant, viz: 1st, a covenant of the defendant, “ in consideration of the above assignment” (it being written under the latter) to keep and perform all the covenants of the plaintiff with Samuel C. Adams: 2d, two notes, by one of which, the defendant promised to pay the plaintiff $1000 on the 1st of May, 1839; and by the other, $2000 on the 1st of November, 1840, with interest after the 1st' of May, 1839, being the note sued on. The notes, also, were under seal.
On the trial, the defendant offered to show by parol, that the plaintiff, by a verbal stipulation between them contemporaneous with the writings, was to pay the rent for the year ending on the 1st of May, 1839, the defendant having executed the note of $1000 as an indemnity for that purpose; that the plaintiff neglected to do so, whereupon Cocks, the lessor, compelled him (the defendant) to pay it. He therefore insisted that he should be allowed this payment against the plaintiff’s demand.
The plaintiff objected to the evidence, as tending to contradict and vary the legal import of the written instruments between the parties; but the referees admitted it, and allowed the defendant the $1000, reporting a balance in favor of the plaintiff. The latter now moved to set aside the report.
M. T. Reynolds, for the plaintiff.
A. L. Jordan, for the defendant.
The evidence objected to, seems to have been treated by the referees as relevant merely to the amount or nature of the consideration expressed in the
p. 603
plaintiff’s assignment; and if it were nothing more, the testimony would have been unobjectionable, within McCrea v. Purmort, ( 16 Wend. 460 ,) and the cases there cited. Had the whole stood on the clause acknowledging the payment of the $3000, it can scarcely be questioned that the plaintiff’s oral obligation to pay one third of it, in discharge of the current rent, would "have been admissible in evidence,[1] But there was much more to encounter. Take, as you must, all the papers passing between these parties together, and consider them one instrument—for they were all executed at the same time, and relate to the same subject—you then have an assignment from the plaintiff to the defendant subject to his covenant which is in legal effect to pay all the rent thereafter to accrue; and this, over and above his covenant to pay the plaintiff $3000, in several instalments. These covenants on the part of the defendant are diametrically inconsistent with the obligation sought to be fastened on the plaintiff by oral evidence. The notes, the provisions of the assignment, the express covenant at the bottom, would all be contradicted by it, both in their direct language and legal effect. That cannot be done.[2] The motion to set aside the report must prevail.
Motion granted.
(a) (a) а) See Cowen and Hill’s Notes to 1 Phil. Ev. 1441 et seq. and the cases there cited.
(b) (b) See Cowen & Hill’s Notes to 1 Phil. Ev. 1420 to 1425.
Cases cited
- M'Crea v. Purmort 16 Wend. 460 p. 603