Bigelow v. Benedict

6 Conn. 116

• Court: Supreme Court of Connecticut
• Decided: June 15, 1826
• Status: Published

Opinion

Peters, J.

This case presents two questions. 1. Is Tucker a competent witness to the deed in question. 2. Are the notes well described in the condition thereto annexed ?

Tucker was the principal debtor. Benedict became his surety, and pledged his estate to Bigelow, to secure this debt. Tucker subscribed the deed as a witness; and was called, by Bigelow, to prove its execution, to effect a foreclosure, and thus pay his own debt with Benedict’s estate ; thereby becoming his debtor for the same amount. Tuckers interest in the event, if any he had, is perfectly balanced; as the principal is always bound to indemnify his surety. 1 Phill. Evid. 54. and the authorities there cited. But admitting Tucker to be interested, against whom is his interest? “ The mortgagee,” say the de fendants’ counsel. Who objects ? The mortgagor. But it is a well settled rule, that a witness is competent, when called on to testify, by a party against whom he is interested. 1 Phill. Evid. 57. n.

Are the notes well described in the condition annexed to the deed ? It is correctly said, by the defendants’ counsel, that in relation to all written documents exhibited as evidence, the court are to decide upon the words they contain; and what is the legal construction of the words used, is the only enquiry, But it is not true, that in this case, the court are called upon to say what is the import and meaning of a note given for “ one hundred.” This certainly would be a vain undertaking. But we are called upon to say, what is the meaning of the defeasance annexed to the deed in question ; and this is to be ascertained, by the words used, the subject matter, the context and the intention of the parties. The sentence is not very accurately expressed ; but read with the eyes of common sense, it is perfectly intelligible. Omit the word “each,” or place it after the word “ notes,” and the meaning will be precisely what it now is, viz. four notes for one hundred, and one for two hundred, dollars. The subject matter is a debt in dollars ; and the context demonstrates the intention of the parties, one to give, and the other to receive, a real pledge for the security of this debt. The sentence is eliptical; and the word “dollars” is understood wherever the sense of the contract requires it. In Booth v. Wallace, 2 Root 247. in an action on a note for “ thirty-two, twelve shillings, and five pence,” it was decided, and I think correctly, that the word pounds, after “ thirty-two,” was necessarily implied.

I would not advise a new trial.

The other Judges were of the same opinion, except Brain-ard, J., who was absent when the case was argued, and therefore gave no opinion.

New trial not to be granted.