Libby v. Mt. Monadnock Mineral Spring & Land Co.

32 A. 772, 67 N.H. 587

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1893
• Status: Published

Opinion

Carpenter, J.

In a suit at law between the parties to a written agreement, or those claiming under it, extrinsic evidence is not admissible.to contradict or alter its terms. The agreement does not conclude strangers. In a controversy between them, or between one of the contractors and a stranger, either party may show by parol that the written contract was made by mistake or fraud, or that by design of the parties it misrepresents the true transaction. Woodman v. Eastman, 10 N. H. 359; Low v. Blodgett, 21 N. H. 121; Edgerly v. Emerson, 23 N. H. 555, 565; Furbush v. Goodwin, 25 N. H. 425; Fiske v. McGregory, 34 N. H. 414; Wilson v. Sullivan, 58 N. H. 260; Lee v. Adsit, 37 N. Y. 78; Coleman v. First National Bank, 53 N. Y. 388; Sprague v. Hosmer, 82 N. Y. 466; Barreda v. Silsbee, 21 How. 146, 169, 170.

In foreign attachment the plaintiff is not a stranger to the contract which he seeks to enforce against the trustees. He claims under and in the right of the defendant. With exceptions not here material (P. S., c. 245, s. 20, Woodbridge v. Morse, 5 N. H. 519, Quigg v. Kittredge, 18 N. H. 137, 139, Bucklin v. Powell, 60 N. H. 119) the trustee is chargeable for whatever sum the defendant could recover against him -in an action on the contract, and is not chargeable unless the defendant could recover. Forist v. Bellows, 59 N. H. 229, 232, and cases cited. The question of his liability is determined upon the same principles of law, and, if a trial by jury or court is elected, upon the same evidence as it would be in such an action. The trustee cannot in general adduce any testimony against the plaintiff which would be inadmissible against the principal defendant. Currier v. Taylor, 19 N. H. 189, 191, 192; Heywood v. Brooks, 47 N. H. 231, 285. If the law were otherwise it might in many cases, as it would in this case (assuming the alleged parol contract to be valid — White Mts. Railroad v. Eastman, 34 N. H. 124), practically nullify the statutes of foreign attachment. A judgment discharging these trustees would not affect their liability to the principal defendants. In an action subsequently brought by them on the contract of subscription the parol evidence could not be received, and they would be entitled to recover.

Exceptions sustained.

Wallace, J., did not sit: the others concurred.