Humphrey v. Oviatt , 8 Conn. 413 ( 1831 )

Bissell, J.

The question, in this case, turns entirely on the construction of the writing. The plaintiff contends, that it refers to the two items of his account in controversy, and contains a promise to pay them, if found to be correct. On the part of the defendant, it has been contended, that admitting the construction to be as claimed, yet the present action does not lie: that the writing purports to make a final settlement of all book accounts; and this being so, the book debt is merged in the new promise, upon which the action should have been brought. It is further contended, that the promise contained in the writing, is conditional, viz. a promise to pay, if it appear that the account is correct; and therefore, the declaration should have been special, setting forth the promise and the performance of the condition.

I do not think, that either of these objections ought to prevail. The new promise is not a security of a higher nature, and not a merger of the original cause of action. The remedy is still on that; and such has been the uniform course of decisions. Lord v. Shuler, 3 Conn. Rep. 131.

Nor is the promise conditional, in such a sense as to require the action to be special. It is to pay, if the account be correct, and stands on the same ground as a promise to pay when the party shall be of sufficient ability; or provided the plaintiff will prove his account; and in these cases, it has been uniformly holden, that the suit may be brought on the original cause of action.

What, then, is the fair construction of the writing in question? The plaintiff’s counsel contend, that this is its legal import: “ Settled all book accounts, except the charges of cash by Elijah Ellsworth, which Mr. Oviatt is to pay, if it appears that the account, is correct.” This construction I do not feel at liberty to adopt; as it is directly opposed to the express terms of the writing itself. That contains a promise to pay an account against Elijah Ellsworth, The charges, on which a recovery is sought, are against the defendant; and may either intend cash delivered to him, by the hand of Ellsworth, or cash delivered to Ellsworth, by his (the defendant’s) order. In either case, the right to charge these moneys to Ellsworth, is effectually precluded. The charges are properly made against the defendant. They could have been made to no one else. By what rule of construction, then, can a promise to pay an account against Ellsworth be made to mean a promise to pay the defendant’s own debt. Suppose an action were brought on the promise contained in this instrument, and in support of it, the plaintiff should prove a valid account against Ellsworth; can it be said, that he would not be entitled to recover? And could the defendant set up the construction now contended for, as a defence against such an action? And could even a recovery here be interposed as a bar? I think not; and if not, it is very clear, that the construction claimed by the plaintiff ought not to prevail.

It is, however, said, that being entered on the plaintiff’s book, and importing, that there was a settlement of the book accounts of the parties; the writing must be supposed to be conversant about, and to refer to, such accounts only.

If the settlement referred to by the writing, embraced nothing but the book accounts of the parties, there might be some force in the argument. But the settlement was not thus confined, but obviously extended to every thing in controversy between the parties. Why, then, should the writing be supposed to refer, necessarily and exclusively, to the book accounts, when the settlement, of which it speaks, was not thus limited?

If it had been the intention of the parties to exclude the items in question from the settlement, and to embrace them within the promise, they could easily have done so; and the presumption is, that the promise would so have been framed as to express that intention. But the language of this instrument conveys no such idea. It refers to another and distinct subject; and we cannot apply it to this, without doing violence as well to its obvious import, as to the apparent intent of the parties. The writing is plain and unambiguous, and must be construed by itself; and being so construed, can have no reference to the subject matter of this controversy; and of course, furnishes no answer to the statute.

I would advise the superior court, that the report of the auditors, in this case, be set aside.

The other Judges were of the same opinion.

Report of auditors to be set aside.