Nixon v. M'Callmont , 6 Watts & Serg. 159 ( 1843 )

The opinion of the Court was delivered by

Rogers, J.

The fundamental error, which lies at the root of the case, arises from the opinion of the learned Judge, that the judgment of revival of the 28th June 1837 was for the precise sum of $4620, and consequently drawing the necessary conclusion from these premises that nothing could be given in evidence anterior to that time to vary the amount. We, however, conceive it to be a judgment for the sum of $9240 given for a special purpose, viz. as a collateral security for a debt due the Bank of North America, for which the plaintiff had become bound as an endorser for the defendant. The principal of the debt, as appears by the agreement filed of record, was $4620; but from this it does not follow that that sum was the amount of the debt. Indeed the very reverse would seem to be its most natural interpretation. “It is hereby agreed that the above judgment shall be and the same is hereby revived for the sum of $9240, the whole amount for which the same was given having been fully paid and satisfied, except the debt due to the Bank of North America, of which the principal is $4620.” It is given to secure the debt due the. bank; and what is the debt but the principal and interest ? The principal of the debt is one thing, the interest is another; the aggregate amount of both constitutes the debt due. The word “ principal” is a designation or description of the debt intended to be secured by the judgment. Suppose the parties had used this language; “except a note or bond due the Bank of North America, of which the principal is $4620;” would it be seriously contended that the word “ principal” was anything more than the description of the note or bond, and would it be insisted that the plaintiff would be entitled to a security for that amount only, although at the time of the agreement several years’ interest was due and unpaid? This, I think, would hardly be alleged, and yet the debt due the bank here arose from notes on which M’Callmont was the drawer and the plaintiff the endorser. It strikes me, therefore, with irresistible force, that all that was intended was merely to ascertain the amount of the principal of the debt, leaving the interest and the principle of the calculation to be afterwards adjusted by the parties, by the court or a jury. It must be observed that the agreement, although filed of record, is collateral to the judgment, and does not form part of it. It must receive the same construction as if entirely distinct and separate from the judgment. And this view of the case is put beyond all doubt by the evidence which the court thought proper to reject. That it was understood that the defendant was to pay the interest as well as the principal, appears from his letter of the 22d June 1837. It is difficult to believe that Mr Nixon agreed to terms less favourable to himself than were offered by the defendant six days before’the confession of the judgment. It may be remarked, that the defendant knew the claim of the bank to debt and interest, the latter calculated in a manner most favourable to himself. To give this agreement any other construction would do great injustice to the plaintiff. He is liable to the bank for the whole debt and interest, whereas, according to the opinion of the learned Judge, he can recover from the principal debtor only the debt without interest. In other words, the principal debtor is liable for less by the whole amount of the interest than his endorser. It requires something more unequivocal than the language used in this agreement to induce me to believe that the parties intended to produce any such result. From this opinion it follows that the court was wrong in excluding the testimony. True, you cannot add to, diminish, vary or contradict a written agreement, but there is nothing to prevent the parties from explaining it. The evidence offered was in explanation, in conservance and support of the agreement, and not in contradiction to it, and for this reason we think it was clearly admissible.

Judgment reversed, and a venire de novo awarded.