Creamer v. Stephenson

Le Grand, C. J., delivered ibe opinion of this court. This action was brought by the appellee against the appellant on a bond, given by the appellant, for the indemnification of the appellee, under the following circumstances: Stephenson (the plaintiff below) purchased land from Creamer (the defendant). A person, of the name of Tome, having obtained judgment against a person, named Adams, from whom Creamer had previously purchased this land, an attachment, on the judgment recovered by Tome against Adams, was issued and laid in the hauds of Stephenson, and also on the lands. The design of the attachment was, to affect any interest which Adams might have in the lands, or the pro ■ ceeds.

Stephenson and Creamer being anxious to complete the purchase, it was agreed between them that Stephenson should pay the purchase money and take a title, upon Creamer giving a bond to indemnify him against these attachments and certain other claims. Tire bond of indemnity is dated the 3rd day of December 1853. After reciting certain facts and agreements, it proceeds to declare that Creamer is to “indemnify and save harmless the said Stephenson against all and singular the claims aforesaid, and against all costs and reasonable charges to which he may be subjected in resisting said claims, and shall refund to said Stephenson all such sums of money as he, the said Stephenson, may be legally required to pay on account of said claims, or upon other liens upon the land aforesaid, or the purchase money therefor, which may have originated since the date of the said Adam’s purchase thereof, from,”&c., &c. The plaintiff, to sustain his case, gave in evidence the bond of the defendant, the judgment in the attachment suit and proof of the payment of the amount by Stephenson; and then offered, in evidence a statement of H. W. Archer, Esq.

To the admissibility of the following portion of it the defendant excepted, viz: “At the same time Creamer, (the time when the bond was delivered to Archer for Stephenson,) inquired what amount he might be held liable for upon such bond, in regard to the same attachment, and was told by me, that, if Tome obtained judgment, he would have to pay the amount ²²¹ Ill at Stephenson might be compelled to pay, including his costs and expenses, as provided in the bond, but that if the attachment was defeated, he would only have to pay Stephenson’s expenses, which would probably be nothing more than the fees which Stephenson might have to pay his attorney; Creamer objected to Stephenson’s employing counsel at his expense, and I recollect distinctly that it ivas understood that Creamer would have ike case defended by his own counsel, which appeared lo me very proper, as he alone was interested, in the result; and, as I was counsel for Tome, it would have been impossible for me to have appeared or acted, for either Stephenson or Creamer, in the attachment ca.se.” The objection of the defendant was placed upon the ground, that, by the introduction of the testimony, “it was sought thereby to prove a parol understanding, wholly different and inconsistent with the legal purport of the bond offered in evidence, and that the bond itself must constitute the only evidence of what the contract was between the parties, and that its legal effect could not be varied by any parol agreement or explanation which might be supposed to accompany and explain it.” The plaintiff expressly disclaimed any such purpose in the offer, and declared that the evidence was offered to slum that the plaintiff had acted in good faith in reference to the said attachment suit, and to rebut any presumption of fraud that might be contended for, as arising out of the judgment in the attachment suit having been obtained by default, and, generally, for any other purpose in the cause which “did not vary the purport of the bond. ’ ’ The court overruled the objection of the defendant, and allowed the evidence to go to the jury with the qualification, “that the same should not be allowed to qualify or vary the legal purport or effect of the bond.” There can be no doubt that is not admissible to vary or contradict a written agreement by parol; but no such effort was made in this case; so far from it, such was expressly prohibited by the court and disclaimed in the offer. And although the law interdicts such variance or