Spofford, J.
The administrator of the succession of the late Sargeant 8. Prentiss brought this suit against the drawer of a bill of exchange, duly protested both fpr non-acceptance and non-payment.
The bill was drawn by the defendant to the order of S. S. Prentiss, but never endorsed by the latter.
The petition alleges that shortly after the bill was drawn, the commercial firm of Wyche & Hammet advanced money on it to Prentiss, who delivered the instrument to them. The suit is brought for their use.
There was a judgment in the District Court for the defendant, and the plaintiff appealed.
Pending the appeal in this court the suit was revived in the name of Mrs. Prentiss, tutrix of the minor heirs of S. 8. Prentiss, upon a suggestion that the administrator was functus officio.
Our attention is called to a motion to dismiss the appeal.
The first point made seems to be that the real plaintiffs in interest, Wyche & Hammet, have not joined in the appeal bond.
The order of appeal is in favor of the plaintiff generally, and it was not necessary that the appeal bond should be signed by Wyche & Hammet. The signature of the surety is sufficient. Fish v. Friend, 3 Rob., 264; Wells v. Lamothe, 10 L., 411; Bank v. Erwin's Heirs, 6 L., 324; Doane v. Farrow, 10 M., 74; Richardson v. Terrel, 9 M., 34.
The other point in the motion to dismiss is that Wyche & Hammet, the real plaintiffs, have abandoned the appeal. We find no evidence of this in the fact that Mrs. Prentiss, tutrix, has made herself a party to the suit, instead of the administrator. She is a proper party, for the legal title to the bill is still in the succession of Prentiss. The equitable interest of Wyche & Hammet is only to the extent of their advances to Prentiss, who seems to have handed them the bill as collateral.
In his answer, it was first alleged by the defendant that Ba/oid P. Williams was a non-resident of the State, and that his appointment as administrator of [114] a Louisiana succession was therefore a nullity, so that he was incompetent to sue for debts due the succession.
The defendant could not be permitted to attack the judgment appointing an administrator in this collateral manner.
It was also contended by the defendant that the administrator could not give away the funds of the estate by suing for the use of third persons.
The administrator gave away nothing. The legal title, and perhaps a residuary interest being in the succession, the administrator acted properly in bringing the suil in his representative capacity, and for the use of Wyche & Hammet, who had advanced money to the deceased intestate upon the draft.
The defendant certainly has no right to complain of the mode in which the suit is brought, for it gives him an opportunity to plead any defences he may have as against either the nominal or the real plaintiff. Dayton v. Commercial Bank, 6 Rob., 18.
This is a sufficient answer to the argument of the defendant, that Wyche & Hammet-were only interested to the extent of $500 or $600, whilst the draft is for $1550, and that the debt cannot be divided without the assent of the debtor.
The whole bill is sued for, and all the parties interested in its collection are named in the pleadings, so as to give the defendant the widest latitude in his defence.
The distribution of the money, if collected, is a matter to be settled between the succession and Wyche & Hammet, and does not concern the defendant.
Wo now come to the merits of the cause — the motion to dismiss and the exceptions being overruled.
The defence, which was successfully pleaded in the inferior court, is that the draft was given to retain the deceased payee as counsel in a suit which the respondent contemplated recommencing, in which Mr. Prentiss had been previously engaged and paid, and in which a nonsuit had been taken ; that it was given at the urgent request of Mr. Prentiss, when he was in declining health, and shortly before his death, with a view to enable him to raise money for a journey to recruit his health, that he might be able to prosecute the suit upon his return ; but that, in consequence of his premature death, the consideration of the draft wholly failed.
We are unable to concur in the views taken by the District Judge of the evidence offered in support of this defence.
The agreement of the parties was in writing. After reciting that Hood was involved in a lawsuit then pending, touching the validity and genuineness of a will of his sister, Lucinda Chambliss, in which the said Hood was instituted heir, and that he was desirous of obtaining the professional services of Mr. Prentiss in the said litigation, the latter bound himself to render such services in establishing the will, and attending to the litigation incident thereto, until the final decision of the question of the validity of said will, and for that purpose to attend the court in Carroll, or any other parish where such litigafion might be pending, as often as necessary, and to argue said cause in the Supreme Court, should it be taken there.
And in consideration thereof, Hood on his part bound himself to pay said Prentiss the sum of $2500 as a certain fee — to wit, $Í000 cash in hand, and the remaining $1500 at the conclusion of the suit. And Hood further agreed to pay said Prentiss, in case the will should be established as valid, the addi[115] tional foe of seven and one-half per cent, upon the value of the property embraced in the will which Hood should receive, by establishing the validity thereof.
The $1000 were paid in Februaiy, 1849, upon the execution of the agreement.
Mr. Prentiss attended to the suit, and made a journey to the parish of Morehouse, whither the venue was changed, and where Mood's counsel, as was stated in the argument, took a voluntary nonsuit in the fall of 1849; of this no complaint is made by Hood, and the step must be presumed to have been taken in his interest.
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Spofford, J.
The administrator of the succession of the late Sargeant 8. Prentiss brought this suit against the drawer of a bill of exchange, duly protested both fpr non-acceptance and non-payment.
The bill was drawn by the defendant to the order of S. S. Prentiss, but never endorsed by the latter.
The petition alleges that shortly after the bill was drawn, the commercial firm of Wyche & Hammet advanced money on it to Prentiss, who delivered the instrument to them. The suit is brought for their use.
There was a judgment in the District Court for the defendant, and the plaintiff appealed.
Pending the appeal in this court the suit was revived in the name of Mrs. Prentiss, tutrix of the minor heirs of S. 8. Prentiss, upon a suggestion that the administrator was functus officio.
Our attention is called to a motion to dismiss the appeal.
The first point made seems to be that the real plaintiffs in interest, Wyche & Hammet, have not joined in the appeal bond.
The order of appeal is in favor of the plaintiff generally, and it was not necessary that the appeal bond should be signed by Wyche & Hammet. The signature of the surety is sufficient. Fish v. Friend, 3 Rob., 264; Wells v. Lamothe, 10 L., 411; Bank v. Erwin's Heirs, 6 L., 324; Doane v. Farrow, 10 M., 74; Richardson v. Terrel, 9 M., 34.
The other point in the motion to dismiss is that Wyche & Hammet, the real plaintiffs, have abandoned the appeal. We find no evidence of this in the fact that Mrs. Prentiss, tutrix, has made herself a party to the suit, instead of the administrator. She is a proper party, for the legal title to the bill is still in the succession of Prentiss. The equitable interest of Wyche & Hammet is only to the extent of their advances to Prentiss, who seems to have handed them the bill as collateral.
In his answer, it was first alleged by the defendant that Ba/oid P. Williams was a non-resident of the State, and that his appointment as administrator of [114] a Louisiana succession was therefore a nullity, so that he was incompetent to sue for debts due the succession.
The defendant could not be permitted to attack the judgment appointing an administrator in this collateral manner.
It was also contended by the defendant that the administrator could not give away the funds of the estate by suing for the use of third persons.
The administrator gave away nothing. The legal title, and perhaps a residuary interest being in the succession, the administrator acted properly in bringing the suil in his representative capacity, and for the use of Wyche & Hammet, who had advanced money to the deceased intestate upon the draft.
The defendant certainly has no right to complain of the mode in which the suit is brought, for it gives him an opportunity to plead any defences he may have as against either the nominal or the real plaintiff. Dayton v. Commercial Bank, 6 Rob., 18.
This is a sufficient answer to the argument of the defendant, that Wyche & Hammet-were only interested to the extent of $500 or $600, whilst the draft is for $1550, and that the debt cannot be divided without the assent of the debtor.
The whole bill is sued for, and all the parties interested in its collection are named in the pleadings, so as to give the defendant the widest latitude in his defence.
The distribution of the money, if collected, is a matter to be settled between the succession and Wyche & Hammet, and does not concern the defendant.
Wo now come to the merits of the cause — the motion to dismiss and the exceptions being overruled.
The defence, which was successfully pleaded in the inferior court, is that the draft was given to retain the deceased payee as counsel in a suit which the respondent contemplated recommencing, in which Mr. Prentiss had been previously engaged and paid, and in which a nonsuit had been taken ; that it was given at the urgent request of Mr. Prentiss, when he was in declining health, and shortly before his death, with a view to enable him to raise money for a journey to recruit his health, that he might be able to prosecute the suit upon his return ; but that, in consequence of his premature death, the consideration of the draft wholly failed.
We are unable to concur in the views taken by the District Judge of the evidence offered in support of this defence.
The agreement of the parties was in writing. After reciting that Hood was involved in a lawsuit then pending, touching the validity and genuineness of a will of his sister, Lucinda Chambliss, in which the said Hood was instituted heir, and that he was desirous of obtaining the professional services of Mr. Prentiss in the said litigation, the latter bound himself to render such services in establishing the will, and attending to the litigation incident thereto, until the final decision of the question of the validity of said will, and for that purpose to attend the court in Carroll, or any other parish where such litigafion might be pending, as often as necessary, and to argue said cause in the Supreme Court, should it be taken there.
And in consideration thereof, Hood on his part bound himself to pay said Prentiss the sum of $2500 as a certain fee — to wit, $Í000 cash in hand, and the remaining $1500 at the conclusion of the suit. And Hood further agreed to pay said Prentiss, in case the will should be established as valid, the addi[115] tional foe of seven and one-half per cent, upon the value of the property embraced in the will which Hood should receive, by establishing the validity thereof.
The $1000 were paid in Februaiy, 1849, upon the execution of the agreement.
Mr. Prentiss attended to the suit, and made a journey to the parish of Morehouse, whither the venue was changed, and where Mood's counsel, as was stated in the argument, took a voluntary nonsuit in the fall of 1849; of this no complaint is made by Hood, and the step must be presumed to have been taken in his interest.
In June, 1850, Prentiss wrote a letter to PLbod, in which he disclosed his illness and his need of funds to enable him to follow the advice of his physician, in seeking the restoration of his health by a change of climate. The letter contains the following explicit statements: “ By our agreement, in relation to your suit in the Chambliss will, the remainder of my certain fee — to wit, $1500, is wo due. General Thomas informed me you settled with him, giving your draft on your merchants here, payable in December next. I must request you to make for me a similar arrangement. I send you a draft to be signed by you and directed to your merchants here, payable 1st January, which I hope will suit your convenience. I have added in interest at six per cent, from date, though it will cost me twice that, at least, to get the draft discounted.” At the conclusion, he added that he hoped to return from the Virginia mountains in the fall, strong and vigorous, and ready to carry out such future proceedings as Hood might determine on against Chambliss and Wilson, whether as regards compromise or another suit.
To this letter Hood replied in a few days, by acceding literally to the request of Prentiss, and sending him the draft now sued on. The reply does not, even by implication, contest the assertion of Mr. Prentiss that the money was then due, under the terms of the original agreement. On the contrary, the bill itself bears upon its face an implied acknowledgment that it was due, for it was drawn, not for the sum of $1500, simply, but included an additional sum of $50 as interest for the delay that would elapse before its maturity.
We have here, then, in the writings and acts of the parties, their own interpretation of the meaning of that clause in the original agreement, which stipulated that the $1500 should be paid “at the conclusion of the suit.” However obscure its meaning might have been without such aids, we are compelled to infer that this clause really meant the conclusion of the particular suit then pending, and that the amount was due when the draft was drawn.
The District Judge would probably have come to the same conclusion but for the oral testimony of a witness, who said that he wrote the reply to the letter of Mr. Prentiss for the defendant, Hood, (who signed it,) and that he was a satisfied that, so far as Hood was concerned, he intended the draft sued on as accommodation paper, and witness mtended to embrace the same idea in the letter he wrote to Prentiss for Hood.. Witness further states that he intended in the letter to say that the $1500 was not due, but was to be given for service yet to be rendered.”
This vague testimony as to unrealized intentions affords an illustration of the wisdom of that ancient rule of evidence which forbids that written instruments shall be contradicted or controlled by parol.
[116] The plaintiff excepted to the competency of the testimony, and we think the exception should have been sustained. It is urged here, however, that the objection was raised too late. The District Judge did not think so, for he signed the bill of exceptions without intimating any such reason for his ruling, but assigned as the true reason the fact that the witness wrote the letter at the request of Hood.
We are bound to presume, then, that the objection was raised and the bill of exceptions tendered seasonably.
The money being due according to the terms of the agreement, as practically construed by the parties themselves at the time the draft was drawn, the subsequent death of Mr. Prentiss did not discharge the drawee, Hood, from his obligation to pay it, any more than it gave him an action for the repetition of the $1000 he had paid at first, in contemplation of services to be rendered by Mr. Prentiss, “ until the final decision of the question of the validity of the will.”
It is therefore ordered that the judgment appealed from be reversed; and, proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that Mrs. Prentiss, as tutrix of the minor heirs of 8. 8. Prentiss, suing herein for the use of Wyehe & Hammet, do recover of the defendant, Govey Hood, the sum of fifteen hundred and fifty dollars, with five per cent, interest thereon, from the 4th January, 1851, until paid, and the costs of suit in both courts.