
    American Surety Company v. McDermott.
    (New York Common Pleas—Trial Term,
    October, 1893.)
    A bond for costs incurred by defendant herein in an action having been given by plaintiff, a surety company, defendant executed a bond of indemnity to plaintiff, which purported to be between “ George A. McDermott, receiver,” of the first part, and the American Surety Company of the second part, and the defendant therein covenanted for himself, his heirs, etc., that he, “ George A. McDermott,” would pay the premium upon plaintiff’s engagement for costs, and that he would indemnify plaintiff against such costs. The paper was signed “ George A. McDermott, receiver.” Held, that defendant was personally liable upon the agreement, and that parol evidence was incompetent to transform such liability into a representative obligation as receiver.
    
      John J. Crawford, for plaintiff.
    
      John Frankenheimer, for defendant.
   Pryor, J.

In an action by this defendant, as receiver of the National Ammonia Company, against John Harrison and others, the plaintiff herein bound itself for costs incurred by this defendant in that action. To. indemnify the plaintiff herein against such costs the defendant herein executed the paper in controversy. .

The instrument purports to be between “George A.. McDermott, receiver,” of the first part, and the American Surety Company of the second part, and the defendant covenants for “himself, his heirs, administrators, successor and assigns,” that he, “ George A. McDermott,” will pay the premium upon plaintiff’s engagement for costs, and that he, “ George A. McDermott,” will indemnify the plaintiff against such costs. The paper concludes, in witness whereof said party of the first part has hereto set his hand and affixed his seal,” and is signed “ George A. McDermott, receiver.”

It is not open to question hut that, by the terms of the instrument, the defendant bound himself, in his individual capacity. Schmittler v. Simon, 101 N. Y. 554; Willis v. Sharp, 113 id. 591; Ryan v. Rand, 20 Abb. N. C. 313; De Witt v. Walton, 9 N. Y. 571; Pumpelly v. Phelps, 40 id. 59, 67. Nothing to the contrary can be deduced from the decision in Whitford v. Laidler, 94 N. Y. 145, for there the agent expressly assumed to contract for his principal, and employed no language susceptible of construction as a personal promise or engagement.

Whether the oral evidence, admitted provisionally, be competent and effectual to transform the personal liability apparent on the face of the instrument into a representative obligation as receiver, is a more interesting and difficult problem.

That the defendant, as receiver, had no power to bind the interest of which he was representative (Schmittler v. Simon, 101 N. Y. 557) is an important circumstance in the solution of the question. For it is not to be assumed that either party would enter into a nugatory engagement; still less, that the plaintiff, demanding indemnity against its risk, would be content with a paper which afforded no indemnity whatsoever.

For support of his contention defendant relies upon Schmittler v. Simon, 114 N. Y. 176. But in that case the adjudication was that where the words of an instrument “ are not entirely intelligible, oral evidence of the circumstances attending its execution may be admissible to aid the interpretation.” Id. 188. In the instrument before me I detect no obscurity or ambiguity. The word “ successor ” is an apt and appropriate term to designate one to whom property descends (6 Lawson’s Rights, etc., § 3108; 2 Bouvier’s Law Dict. 681; Wharton’s Law Lex. 704; Anderson’s Dict, of Law, 986); and in association with the words “heirs,” “administrators,” and “ assigns,” plainly imports a devolution of charge upon the obligor’s estate.

At all events, by the most precise and explicit language, the defendant binds himself to the performance of his covenant. ' .

“ Evidence to explain an ambiguity * * * is received where doubt arises upon the face of the instrument as to its meaning, not to enable the court to hear what the parties said, but to enable it to understand what they wrote, as they understood it at the time. Such evidence is explanatory, and must be consistent with the terms of the contract.” Thomas v. Scutt, 127 N. Y. 133,141. “ The court did not err in excluding oral evidence of the understanding of the parties at the time the defendants executed their indemnity agreement. There was * * * no ambiguity therein, which, within the rules of law, would justify oral evidence as to the understanding of the parties. The court was bound to seek for that understanding in the agreement executed by the defendants, which must be assumed to embody it.” American Surety Company v. Thurber, 121 N. Y. 655, 659.

In Schmittler v. Simon, 114 N. Y. 176, the court explicitly reaffirms the cardinal rule that “when an agreement is reduced to writing, no oral evidence is admissible to vary, explain or contradict its terms;” and vindicates a deviation from the rule in the litigation before it, upon the express ground of an ambiguity apparent on the face of the paper.

The incompetency of parol evidence to modify the meaning of a written contract is all the more obvious and incontestible in case of an instrument under seal. Briggs v. Partridge, 64 N. Y. 357; Kiersted v. Orange, etc., R. R. Co., 69 id. 343; Schaefer v. Henkel, 75 id. 378.

Judgment for plaintiff.  