Opinion
June Term, 1837.
1. In the absence of fraud, mistake or surprise, parol evidence cannot be received to prove that a bond, payable immediately, was not to be demanded until after the obligor's death.
2. A bond given for the amount of an account is not rendered voluntary by the fact that the obligor had a set-off of equal amount which was waived.
THE allegations of the bill were that William Gilmore, a nephew of the plaintiff, having been unfortunate in business, and having lost his wife, who left a family of infant daughters, brought them to the house of the plaintiff, his maternal aunt; that at that time no agreement was made for their board, but that Gilmore informed her that he was about to commence business in Petersburg as a grocer, and that he would supply her with such articles in his line as she required; that (476) the children resided with her eight years, and that during that period their father did supply her as he had promised; that on 1 September, 1827, he visited his children, and while at the house of the plaintiff produced an account for the various articles which he had furnished her with, and asked her to execute a bond to him for the amount; that this was promptly refused by her, she stating to him that he owed her a sum at least equal to the amount of his account; that this was admitted by Gilmore, who told her that his children were as nearly related to her as any other person; that as she was a single woman, advanced in life, her property would upon her death be distributed among her relations, and he asked the bond only as a means of enabling his children to receive a portion of it; and that he then promised her that if she would execute the bond she should never be called on for payment of it, but that he would wait until her death, and then receive it only in the event of her leaving property to pay it; that, moved by these considerations, she executed the bond before a respectable witness, to whom the above statement was made; that Gilmore had died insolvent, having before his death pledged it to John V. Wilcox (a defendant) upon a loan of four hundred dollars; that the bond had been, by Wilcox, handed to the defendant Stainback, the partner of Gilmore, who had brought suit on it; that Gilmore had promised her that he would charge its amount to himself and take it from the partnership effects and put it among his private papers; that upon his deathbed he had communicated the above-mentioned facts to Stainback, and besought him not to press the plaintiff for the amount during her life; that he, Stainback, instead of so doing, had brought suit on the bond; that the plaintiff had succeeded in setting off against it the sum due for the board of the children of Gilmore, subsequent to its date; that of a large sum due her before its execution she had been defeated by the presumption of a settlement which the bond raised, and by the statute of limitations; and that judgment for the balance of the bond had been entered against her. The plaintiff insisted that the bond was testamentary in its character, and if in this she was mistaken, then that she was entitled to have the payment of it stayed until her death; and she prayed either a perpetual injunction or one during (477) her life.
Badger and Devereux for plaintiff.
W. H. Haywood for defendants.
The defense and testimony is stated fully by the Chief Justice in giving judgment.
The instrument is in no sense testamentary. It was never intended to be revokable according to the statement of the bill. The form of the instrument shows this. It is a bond, and the plaintiff admits that it was meant to bind her to the absolute payment of the money, if not immediately, at her death. If it be meant that it is testamentary, because it is a voluntary provision for a relation, to arise after the party's death; it is not even that, if that would do. This is not a voluntary bond. The bill admits that the plaintiff had merchandise to the value of the sum for which the bond was given. It is therefore founded on an adequate and full consideration. The plaintiff says, indeed, that she might have made a counter-demand, of equal or larger amount, but that she would not nor did not. If the board of the children was not meant from the beginning to be gratuitous, a point on which the parties had probably no definite purposes, much less distinct communication, yet the abandonment of a claim for it, by the person who might set up such an one, will not make the bond of that person for a just debt due to another voluntary; more especially when it was not expressly abandoned, as was the case here, for the plaintiff actually had the benefit of the subsequent board, by way of set-off, in the action on this bond; and she attributes the loss of the residue to the operation of the statute of limitations. The plaintiff is certainly, therefore, not entitled to a perpetual injunction.
If the alleged agreement for the delay were established, relief might be granted to the extent of stopping the payment during the plaintiff's life. But the only evidence of the agreement is the testimony of the subscribing witness. The plaintiff has failed in her attempt to (478) draw it from the defendants upon her interrogatories. Stainback answers distinctly that the goods for which the small bond was given were furnished by W. Gilmore Co., but that those which formed the consideration of the large bond were not, but must have been purchased by Gilmore for the plaintiff, for that the firm of W. Gilmore Co. was not formed until the year 1828, which was after the date of this bond. He states that no entry was made of it on the books of that concern, and tenders the inspection of them to any agent of the plaintiff; and he denies that Gilmore ever made any communication whatever to him, or to any person to his knowledge, upon the subject of the bond, or of any condition on which it was given; and, moreover, denies that he knew of the existence of the bond, or of the debt on which it was founded, until after the death of Gilmore. The plaintiff's case, therefore, rests entirely upon the testimony of the witness.
He states that he also resided with the plaintiff during the whole period that Mr. Gilmore's children did; that he was present and witnessed the bond for one thousand dollars; that at that time or any other he never heard compensation for the board of the children spoken of, but that when the bond was given it was distinctly agreed that it was not to be presented for payment until after the death of the plaintiff, but upon that event, if she left property, the money was to be recoverable.
Upon this evidence it is not competent to the Court to vary the written contract. Neither the bill nor the deposition intimate that the bond is not in its form what the parties thought and intended it to be at the time. There is no allegation of fraud, mistake, or what is technically called surprise in this Court. The bond was not given for more than was intended or than was due, upon the principle on which the parties settled, nor payable at a different day from that on which it was understood to purport to be payable. The allegation and evidence is merely of a distinct collateral agreement, entered into at the time, which is insisted on as controlling the written agreement. It ought to have been inserted in the instrument or set forth in a separate one, in the (479) nature of a defeasance or condition. It has been so often said by the Court that parol evidence is inadmissible for that purpose as to render it almost a legal adage, not needing the support of an authority. There are, however, many adjudications, and among them is the case of Howell v. Hooks, 2 Dev. Eq., 258, directly in point.
PER CURIAM. Bill dismissed with costs.