Rogers vs. Atkinson et al.

No. 5.-JOB ROGERS, plaintiff in error, vs. ROBERT ATKINSON, administrator, and MENEMIAH LIGON, administratrix, of Marshall Ligon, deceased, WILLIAM SOLOMON, JAMES M. SPULLOCK, executor, and MALINDA HARGROVE executrix, of ZACHARIAH B.. HARGROVE, deceased, defendants in error.

In Equity.

Parol evidence is inadmissible to contradict or vary the terms of a written agreement. Where the contract is reduced to writing, conversations or stipulations anterior to, or contemporaneous with, the written instrument, are supposed to be merged in it, and are not allowed to be proved by oral testimony.

If it were not necessary in the first instance, to have the contract reduced into writing, parol evidence may be received of conversations and circumstances, subsequent to the time of making the agreement, to show that the parties upon sufficient consideration consented afterwards to vary the contract or add some new stipulation. It matters not how soon after the execution of the written contract, the parol one was made. If it was in fact subsequent, and is otherwise unobjectionable, it may be proved and enforced.

Equity relieves against mistakes as well as frauds in a deed or contract in writing, and this either where the plaintiff seeks relief affirmatively on the ground of mistake, or where the defendant sets it up as a defence, or to rebut an equity. Where an instrument is drawn and executed for the purpose of carrying into effect a contract written or parol, previously entered into, and which by mistake of the draftsman, in fact or in law, does not fulfill the intention of the parties, equity will correct the mistake so as to produce a conformity of the instrument to the agreement.

An injunction will not be granted to stay a sale under an execution, on the ground that the judgment has been fully satisfied, inasmuch as the party has a prompt and adequate remedy at law. It is otherwise when the bill charges, that the payment has been made by the representatives of the principal defendant, or a third person, under a fraudulent combination to oppress the complainant, and that the facts attending the transaction rest in the knowledge of the defendants alone, and can only be obtained by an appeal to their consciences,

This cause was brought before the Supreme Court at Cassville, March term, 1846, upon the transcript of the record, bill of exceptions and writ of error thereon from the Superior Court of Floyd county. Its history is this. Marshall Ligon, the intestate of Robert Atkinson and Menemiah Ligon, commenced suit in his lifetime against Job Rogers, the plaintiff in error, and Zachariah B. Hargrove, then also in life, the testator of James M. Spullock and Malinda Hargrove, to recover damages for a negro boy, wagon, team and harness, alleged to have been lost by the sinking of the ferry boat at Rome, which boat was charged to have been the joint property of Rogers and Hargrove; but which in fact, at the time the accident occurred, belonged exclusively to Hargrove, together with the ferry landings on both sides of the river.

Rogers was merely employed to superintend, and had no interest whatever in the property. About the time the action was instituted, Hargrove executed an instrument of indemnity to Rogers, acknowledging that he alone was liable as the owner of the Ferry, for whatever recovery might be had. A judgment was rendered for Ligon against both fendants for $2,260, from which an appeal was entered. Rogers now

Rogers vs. Atkinson et al.

filed his separate plea, claiming entire exemption, upon the foregoing statement of facts, which he was prepared to maintain by proof. Pending the appeal, a compromise was agreed upon between the Representatives of Hargrove and Ligon, to the effect that the appeal should be dismissed-$760 written off the verdict, leaving the judgment to stand for $1,500; and to induce Rogers to consent to the adjustment, an agreement was entered into by all the parties in interest, that the money should be made, or all legal means used to make it, out of the estate of Hargrove, before coming upon Rogers, and upon this promise Rogers acceded to the arrangement. The previous portion of the agreement, as to the dismissal of the appeal, and the scaling of the judgment, was reduced to writing, signed by the respective attorneys of the plaintiffs and defendants, and put on the minutes of the court; the latter stipulation, postponing the property of Rogers from liability until the estate of Hargrove was first exhausted, was not in the instrument. The execution was issued and levied upon the property of the estate of Hargrove, which was amply sufficient for its payment,-no claim was interposed to arrest the sale,-the levy was, nevertheless, dismissed and the fi. fa. re-levied upon the goods of Rogers, who filed his bill, returnable to the April Term, 1845, of the Superior Court of Floyd county, wherein he sets forth the previous proceedings as herein recited, and charges also, that one William Solomon, who had taken possession of the whole of the assets of Hargrove, amounting to $30,000, under some pretended claim against the estate, fraudulently combining with the Representatives of Ligon and Hargrove, had obtained the possession or control of the execution, and was seeking to enforce it against the property of the complainant, contrary to the express terms of the agreement, and without which, he, Rogers, never would have consented to the dismissal of the appeal, feeling full confidence as he did, of being acquitted from all responsibility upon the final trial. The bill further charged that Solomon well knew the terms of the agreement, under which complainant claimed to be protected, in the first instance, from the debt, and that he held the property of Hargrove's estate fraudulently, and without paying for it any consideration, and that the execution having been discharged, either by Solomon, or the representatives of Hargrove was functus officio and kept open, and sought to be collected illegally and covenously out of complainant. It also affirmed that most of the material facts were in the knowledge of the defendants, or some of them, and could not be otherwise established, but by resorting to their consciences. It concluded by praying that the intention of the parties might be carried into effect, either by setting up. that part of the agreement which did not appear upon the minutes of the court, as a separate and independent contract, or if in the opinion of the Chancellor that could not be done, that then the writing itself be re-formed, and the portion omitted therefrom innocently by mistake, or fraudulently by design, be incorporated therein; or that the appeal be reinstated, and a new trial ordered.

At

There was likewise a prayer for an injunction, which was granted when the bill was sanctioned, the 16th day of November, 1844. the appearance Term of the bill, April ensuing, a motion was made to dissolve the injunction upon the following grounds, to wit:

1st. Because the complainant in his bill shows the residence of the de

Rogers vs. Atkinson et al.

fendants to be out of the county of Floyd, except James M. Spullock; and that the injunction was granted on the 16th day of November, 1844; and that he has made no effort to have any of the defendants served, except said Spullock.

2d. Because the complainant has not by his said bill made such a case as entitled him to any decree in a Court of Equity against the defendants, or any of them, or to any discovery from, or relief against, them.

3d. Because the complainant had entered no appeal in the cause in which the execution sought to be enjoined was obtained; and no consideration, therefore, passed from him for any promise which may have been to him, if there was any.

4th. Because complainant seeks by his bill to alter the terms of a written contract, and to incorporate in it a new and different consideration from the one therein contained, by parol evidence.

5th. Because the bill is contradictory upon its face, seeking to enforce a separate parol agreement, different from the written contract, and charging also that the same parol agreement was left out of the written contract innocently, by mistake, or fraudulently, by design.

6th. Because the bill seeks to correct a mistake in a written agreement, and then to enforce a specific performance of it against an individual not a party to it, who is a purchaser, for a valuable consideration, and without notice of the mistake.

7th. Because if the execution were paid off, and delivered to William Solomon, as charged, he is entitled to collect the money due thereon, whether he has a written transfer or not.

8th. Because if the execution is paid off by any one, the complainant has a complete and adequate remedy at law.

9th. Because the bill seeks to adjudicate the rights of different individuals, entirely unconnected, and distinct and independent matters, requiring different decrees, as between the same defendants.

10th. Because an injunction has been heretofore granted, at the instance of complainant, against the defendants in this bill, upon the same facts, and for the same subject matter, and the bill dismissed and the injunction dissolved, upon a general demurrer, for want of Equity in the case made by the bill.

Upon this motion, Judge WRIGHT, before whom the cause was tried, pronounced the following judgment:

1st. The complainant's negligence in not having the bill served, nor making any effort to do so, for more than five months after the sanction of the injunction, is good cause not only for a dissolution of the injunction, but for a dismissal of the bill. Our injunctions (which Equity writers call a harsh writ) are granted upon ex parte hearings of the complainant; and it is a good rule, and one not to be dispensed with, that the complainant use all the means within his power to bring the bill to a hearing. The unqualified statement of counsel, in this case, that he acted under a misapprehension of the practice, and had advised his client that it was unnecessary to take measures for the service of the defendants out of the county until Term time, the court, in this instance, will take as a sufficient excuse for the delay.

Rogers vs. Atkinson et al.

2d. Ground being of a general nature, for the want of Equity, I pass notice the specifications.

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3d. Whether the appeal entered by complainant, as defendant at law, would have enabled the complainant to defend at law, or not, it is immaterial to decide; it was at least a doubtful right, and therefore a sufficient consideration upon which to have a compromise.

4th and 5th. Grounds may be answered together. I cannot think, as insisted upon by complainant's counsel, that it constituted a separate agreement. Rogers signed the written agreement; the consideration for the withdrawal of the appeal, both to the executors, and also to Rogers, by the writing, was the reduction of the verdict $760. That the judgment should be first collected out of Hargrove's property, and Rogers thereby saved harmless, may have formed an additional consideration why Rogers signed the agreement; but that, of itself, could not form a separate and distinct contract; but though it does not form a separate agreement, yet if this consideration was left out by mistake, or fraud, is made to depend upon whether the court considered it a separate agreement or not. A past fact cannot depend upon a future contingency; besides, pleading in the alternative is bad in Equity, as well as at Law. The allegation must be certain and positive. If, however, the complainant can make the amendment to his bill, by making the allegation positive, that it was to have formed part of the written agreement, and was left out by mistake, or by fraud, he may do so without prejudice to the injunction-otherwise the bill must be dismissed upon this ground.

6th and 7th. Although Solomon is made a party, it does not appear from the bill (which must be taken as true) that he is a purchaser for a valuable consideration; but that he is a fraudulent and pretended purchaser, among other things, for the express purpose of preventing, by collusion with Ligon, and the executors of Hargrove, the collection of the money due upon the judgment out of the property of Hargrove's estate; and if he has advanced the money upon the judgment for this purpose, with a full knowledge, as alleged, of Hargrove's liability, first, to pay the debt, and save Rogers harmless, it would, so far at least as Rogers is concerned, (who must stand in the attitude of a security, so far as relates to these parties,) be payment of the judgment. He cannot control the judgment by advancing the money upon it for the purpose of consummating a fraud.

8th. Though he might avail himself of payment at law, by illegality, there are other grounds of Equity, and a decree is necessary to incorporate the entire agreement into the written agreement which forms the record upon which the judgment is predicated; besides, discovery is sought, &c.

9th. If Rogers is security, he is a creditor upon payment of the debt; and it might well be inquired, whether the conveyance to Solomon, by the Executors, was fraudulent or not. Twenty different issues may be made in the same bill, without multifariousness, for the purpose of arriving at the main issue of the bill, as where property is fraudulently conveyed to different individuals, at different times; but claiming through each other, for the purpose of defeating creditors, the fraud, in each transaction, may be inquired into in the same bill; otherwise, Courts of Equity would be incompetent to render adequate relief.

10th. It is not true, as stated, that a bill was dismissed upon general

Rogers vs. Atkinson et al.

demurrer, at a previous hearing, upon the same facts, and for the same subject matter. This bill seeks to correct the record by incorporating the original consideration into it, which the other did not, but sought to enforce an agreement contrary to the record, leaving the record as it found it. Besides, this bill, if retained, will contain positive allegations of either fraud or mistake, in leaving out matters intended to have been incorporated in the written agreement, which the other did not. It does not follow that, because a bill has been dismissed, and the Injunction (of course) dissolved, upon a general demurrer, for a want of Equity, that it is such a dissolution upon the merits of the case that no second injunction can be granted. There is a distinction between the merits of the case, and the merits of the bill. The first does not mean, as insisted upon, the merits of the case made by the bill; that is, the merits of the bill. The bill is the case made by the bill, together with eight other parts, mostly formal; but the case made is essentially the bill. Therefore, an injunction may be dissolved upon the merits of the bill, without being dissolved upon "the merits of the case," within the meaning of the Statute. A bill, praying specific performance, without payment of the purchasemoney or tender, would have no merits. There would be merits in a new bill, averring payment, about the same subject matter. Would a decision upon the first be a decision upon the merits of the case, or upon the merits of the bill?

At July adjourned Term of the Superior Court, defendants' Counsel again applied to have the Injunction dissolved. The application was refused, and complainant was allowed farther time to amend his bill. This amendment was made, by striking out so much of the original bill as seemed to set up the stipulation, for the benefit of Rogers, as a separate and independent contract, and making divers other alterations, therein alleging, distinctly and positively, among other things, "that the stipulation left out was a part of the written agreement; that it should have been incorporated therein; that it was omitted by mistake;" and the complainant prayed" that it might be reformed according to the true intent and meaning of the parties." At the March Term of the Superior Court of Floyd county, 1846, Judge Wright dissolved the Injunction, and ordered the execution to proceed, for the reason, that the complainant still refused or neglected to make the amendment required; and he reaffirmed the opinion expressed by him in April, 1845, and considered it made as of that term.

JOB ROGERS, by his attorney, WILLIAM H. UNDERWOOD, complains that there was error committed by the court below, in tbis-namely:

1st. That the original bill was good, and sufficient in law to entitle the complainant to have and maintain his suit against the defendants, and to upon them to answer the same.

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2d. That the amendment was substantially made, in conformity to the decision of the court, and the amended bill was sufficient to authorize and require the court to compel the defendants to answer.

3d. That in either the original or amended bill, there was enough charged to retain the injunction.

UNDERWOOD for plaintiff in error.

decision admits that almost every charge is sufficient of itself to support the