
    Leonard Dodge, Resp’t, v. Nancy Zimmer, App’lt.
    
      (Court of Appeals,
    
    
      Filed June 5, 1888.)
    
    1. Contract of bale—Construction of—Evidence—Admissibility of PAROL EVIDENCE.
    The interest of the defendant in a certain estate being in litigation in a law suit over the probate of the will, and she having an inchoate and contingent claim against the assets of said estate to he re-imbursed for her expenses paid or incurred in the litigation, sold and transferred to plaintiff, “all her right, title and interest, and all claims of every name and nature which she has or are known to her or may exist in her favor against the estate of Rudolph Zimmer, deceased,” * * * by way of legacies, dower, thirds, moieties or otherwise. Held, that if the latter words raised an ambiguity parol proof was admissible to show the construction put upon the instrument by the parties at the time and the action taken under it.
    
      % Same—Evidence of supplementary parol agreement—Admissibility OF.
    The attorney who conducted the contest in behalf of the defendant had a lien upon her cause of action which the defendant agreed with plaintiff to extinguish by payment. This suppletory parol agreement looked forward to a possible contingency in the action of a third person which might put in peril the terms of the written agreement and sought to avert the danger and guard against it. Held, that there was no error in admitting the evidence of said parol agreement.
    3. Same — Payment when voluntary — What a debt of another within statute of frauds.
    The attorney of defendant proceeded with the litigation to a decree, which charged the costs of the defendant upon the estate, and the plaintiff in order to prevent him from collecting them out of the estate paid them and brought this suit to recover the amount so paid. Held, that the paymént hy plaintiff was not voluntary. That defendant’s promise to pay the attorney was a promise to pay her own debt and not within the statute of frauds. That plaintiff was entitled to recover.
    Appeal from a judgment of the ‘general term of the superior court of Buffalo, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury rendered at the circuit and from an order denying defendant’s motion for a new trial made upon a case and exceptions.
    
      F. Brundage, for appl’t; A. Moot, for resp’t.
   Finch, J.

Upon the facts of this case there is no doubt of the justice of the plaintiff’s claim. The purchase of the interest of Nancy Zimmer was intended to end a law suit over the will, and not to prolong it into a bill of costs against the estate; and with the express understanding that out of the purchase money she should pay her attorney and extinguish his claim. The truth of this is not denied by those who could have denied it if it was a falsehood.

That fact accords with the tenor and legal effect of the papers executed. They transferred to plaintiff the entire right and interest of Mrs. Zimmer against the estate. Growing out of the contest over the will she had an inchoate and contingent claim against the assets to be reimbursed for her expenses paid or incurred in the litigation. That claim might, or might not, be allowed by the surrogate; dependent upon bis judgment of her good faith; but whatever it was or might prove to be, it was covered by the words, “ all her right, title and interest, and all claims of every name and nature which she has or are known to her, or may exist in her against the estate of Rudolph Zimmer deceased, by way of legacies, dower, thirds, moieties or otherwise.”

If the latter words raise an ambiguity or create a doubt, that is dispelled by the parol proof which shows the construction put upon the instrument by the parties at the time and the action taken under it. Such proof was admissible, if the writing was ambiguous. Griffiths v. Hardenhurgh, 41 N. Y., 464. It did not contradict or vary the assignment, but showed how the parties understood its terms and relieves it of all ambiguity. The appellant, however, does not seem to dispute the construction we have asserted. I understand him to concede fully and distinctly that the writing transferred to plaintiff all Mrs. Zimmer’s right to reimbursement for the charges of her attorney, so far as they had been incurred.

It thus became her duty to pay him, and without recourse to the estate. Her transfer extinguished any right to get his pay out of the assets and left her sole debtor for the amount of his charges. She promised, in substance, to pay that debt. The jury so found upon a submission to them of that single question. The plaintiff required that she should do so, not as essential term of his purchase, which would be effective between the parties without it, but as a further and collateral guard against an outside claim of the attorney. Beecher, who had conducted the contest in behalf of Mrs. Zimmer, had a lien upon her cause of action and upon any judgment which might be rendered against the estate. It was not contemplated that one should be, for the writing stipulated that plaintiff might continue the proceedings and have a decree of probate ©r denial of probate, as he pleased. The . manifest purpose was to allow him to control the proceedings; but Mrs. Zimmer could not settle so as to cut off Beecher’s rights, and the only mode of accomplishing that was for defendant to pay him and so extinguish his lien; and that she agreed to do.

I think that was an independent collateral agreement, and so was valid and admissible although by parol. Chapin v. Dobson, 78 N. Y., 74; Eighmie v. Taylor, 98 id., 288. It answers very closely to one of the exceptions conceded to exist in the case last cited, viz., “a stipulation which assumed that agreement precisely as indicated by the writing, but dealt with a possible contingency in the future, as to which a separate or suppletory agreement was made.” Assuming the contract of purchase and sale to stand and remain unchanged in all its terms, it looked forward to a possible contingency in the action of a third person which might put in peril the terms as they stood and by such suppletory parol agreement sought to avert the danger and guard against it. There was no error therefore in the admission of the evidence.

Nor did the statute of frauds render it invalid because an agreement to pay the debt of another and not in writing. It was á promise by Mrs. Zimmer to pay her own debt to Beecher.

It does not answer the plaintiff’s claim to say that the promise covered only the counsel fee, which was in fact paid Beecher out of the purchase money. The defendant’s agreement was to “take care of Beecher.” The money paid was to effect that result, and he as a disturbing or dangerous element by reason of his rights was to be taken out of the case.

The payment made to Beecher was not voluntary. As the representative of Mrs. Zimmer, and we must assume with her knowledge and consent, he proceeded with the litigation to a decree which charged the costs of the proponent upon the estate. His lien upon them attached at once and while as against Mrs. Zimmer the plaintiff could have prevented their collection out of the estate in his hands, yet as against Beecher he could not, and the payment was compulsory, and to relieve the estate from the lien. He was thus compelled to do what was the defendant’s duty and what she agreed to do and is entitled to recover the amount so paid of Mrs. Zimmer.

He was not a party to the proceeding before the surrogate in any such sense as to bar his present right of action.

Other objections to the recovery have been examined and considered, but need not be discussed.

The judgment should be affirmed, with costs.

All concur, except Rttger, Ch. J., not voting.  