
    Crawford and Others v. Jarrett’s Adm’r.
    April, 1831.
    (Absent Cabell and Coalter, J.)
    Parol Evidence — Written Instrument. — Parol evidence is not admissible to vary, contradict, add to, or explain, a written agreement; but, in cases of equivocal written agreements, the circumstances under which they were made, may be given in evidence to explain their meaning.
    
      Executions — Contract of indemnity — Signing by One Not Named in instrument — Eifect — Consideration. — A constable levies sundry executions sued out by A. on property of the debtors; the removal and sale •ot the property is forbidden by the landlords of the debtors, claiming that it was liable for the rents; and A. the creditor, and B. enter into a written agreement, to indemnify the constable ‘'agreeably to law:” which agreementis signed by .A. and B. and by 0. also, though CVs name is notin the body of the instrument; and this agreement is delivered to the officer, on the day and at the place »of sale: A. B. and C. all acknowledging it as their act. and B. and C. declaring verbally, that they •are A.’s sureties: Held, this is the joint assumpsit ■of A. B. and 0. to indemnify the constable, for removing and selling the property under A.’s executions and paying the proceeds to him, and the sale of it by the constable is a consideration to support the assumpsit as to them all.
    Same-Same — Action on — Eifect of Judgment against Officer- Quaere. — An officer is indemnified for selling property taken under execution, the sale whereof is forbidden by landlords of the debtor, claiming payment of rents in arrear; the officer sells; the landlords bring action against him and recover judgment for damages: Quaere, under what circumstances, in an action brought by the officer upon the contract for the indemnity, it may be competent to the defendants to prove the real value of the property to be less than the damages assessed in the action against the officer, or what is the eifect of the judgment against the officer, as against the persons bound to indemnify him?
    Same — Removal of Goods without Faying Rent Due— Measure of Damages. — An officer take* under execution, and removes, goods of a lessee, without paying the rent in arrear due to the landlord: Held, in an action by the landlord against the officer for so doing, not the amount of the rent ar-rear, but the value of the goods, is the just measure of damages.
    This was an action of assumpsit, brought by Jarrett’s administrator against Crawford, Gardner and Shrewsbury, in the circuit court of Greenbrier.
    *The declaration contained three special and two general counts. 1. The first stated in substance, that Jarrett in his lifetime, being a constable of Kan-awha, at Crawford’s special instance and request, levied seven writs of fieri facias, sued out by Crawford upon judgments of a justice of the peace of Kanawha, on warrants against Wood and Brown, upon goods the property of those debtors, found on certain premises leased to them and others, by one Warth, and by Alderson and Slack; out of which premises there were rents reserved, and then in arrear and due, namely, 75 dollars and 120 bushels of salt to the lessor Warth, and 1068 dollars to the lessors Aider-son and Slack; and, at the time Jarrett levied Crawford’s executions on the goods of the lessees, those goods were taken and held in distress by the lessors, for rents in arrear to them, respectively; and they requested of Crawford and Jarrett, that the rents due them, respectively, should be paid; whereupon, and in consideration, that Jarrett would sell the goods taken by him under Crawford’s executions, and satisfy the same out of the proceeds of sate, Crawford, Gardner and Shrewsbury (the defendants in this action) made and signed a written agreement with Jarrett, whereby —reciting, that Jarrett had levied Crawford’s executions, on the following property of Wood and Brown, viz. seven chairs &c. [specifying some other trivial articles of furniture] the sale of which was forbidden by the lessor Warth, and two yoke of oxen and one cart, the sale of which was forbidden by the lessors Alderson and Slack, they Crawford, Gardner and Shrewsbury, agreed to indemnify Jarrett, the constable, agreeably to law ; and thereupon, Jarrett sold the goods under Crawford’s executions, and paid him the proceeds, in satisfaction of his executions, which amounted to 145 dollars, besides interest and costs; and, after-wards, Warth brought two suits against Jarrett, in the circuit court of Kanawha, for his so taking and selling the said goods, and recovered judgments, in one suit for 81 dollars, and in the other for 64 dollars, damages, and the costs; and Alderson and Slack brought a suit against Jarrett, *in the same court, for his so taking and selling the said goods,, and recovered judgment against him for 1163 dollars, damages, and the costs; which judgments against Jarrett remained in full force, nowise vacated, reversed or annulled (except that 581 dollars of Alderson and Slack’s judgment had been released by them) as would more fully appear by the record of the said suits and judgments, reference thereto being had; yet the defendants Crawford, Gardner and Shrews-bury, or either of them, had not indemnified Jarrett agreeably to law, or in any way saved him harmless, in manner and form as by their said agreement provided, but on the contrary, Jarrett had been compelled to pay and satisfy the said judgments so recovered by Warth, and by Alderson and Slack, to those parties respectively. 2. The second count did not allege, that the goods of Wood and Brown, taken by Jarrett under Crawford’s executions, were on leasehold premises, held by the debtors under Warth, or Alderson and Slack, or that the lessors had taken the goods in distress for rent, or that they claimed satisfaction of any rent in arrear and due to them, or that they had forbidden the sale; and it alleged, generally, that the defendants, Crawford, Gardner and Shrewsbury, in consideration that Jarrett would sell divers goods of Wood and Brown, which he had taken under Crawford’s executions against them, and would pay the proceeds to him in satisfaction thereof, undertook and promised Jarrett, that they would indemnify and save him harmless for so selling the goods, without stating, that the undertaking and promise of the defendants was in writing. In other respects, this count was like the first. 3. The third count stated, that the defendants Crawford and Gardner, by an agreement in writing, bound themselves to indemnify Jarrett for selling the goods taken by him under Crawford’s executions, and that Shrewsbury signed the same agreement, as surety with Gardner for Crawford, and thereby became a joint promiser with Crawford and Gardner, and then all three of them delivered the agreement to Jarrett, as their joint agreement *to indemnify him for selling the goods. In all other respects, this count was like the first. The 4th and 5th counts were general counts in assumpsit, for money paid, laid out and expended, and for money had and-received.
    The defendants demurred generally to the three special counts in the declaration: the court held the counts good, and overruled the demurrer. And they pleaded in bar, 1. That the plaintiff’s intestate, Jarrett, had impleaded the defendants in a former action for the same causes, and for non-performance of the same promises, in the | declaration alleged, in which former action, there was a verdict and judgment for the defendants: the plaintiff replied, nul tiel record: the defendants shewed the record of a former action of Jarrett against them, and judgment for the defendants, but in that case, the actual agreement of the defendants for the indemnity of Jarrett, offered in evidence by him, was excluded on account of material variance from the agreement laid in the declaration, and so the jury found for the defendants: and, upon inspection of this record of the former action, the court held, that there was no such record as that alleged in this plea. 2. The defendants pleaded, that the plaintiff had never made any demand upon them to indemnify him; to which plea the plaintiff demurred generally; and the court held the plea naught, and sustained the demurrer. 3. The defendants pleaded the general issue, upon which the cause was tried.
    At the trial, the defendants filed four bills of exceptions to opinions and instructions of the court given to the jury.
    1. The plaintiff offered in evidence the agreement of the defendants to indemnify Jarrett, which was as follows: “Whereas E. Jarrett, constable of Kanawha county, hath, by virtue of seven executions in the name of B. A. Crawford against A. Wood and J. Brown, levied the same on the following property, seven chairs, &c. [specifying a few articles of furniture] the sale of which is forbidden by J. Warth, and the sale of the balance of the property, viz. two yoke of oxen and one cart, by S. Slack ; and the said *B. A. Crawford, plaintiff in the above named executions, and N. Gardner, his suréty, bind themselves, &c. to indemnify the above named constable agreeably to law. Witness, our hands &c.” This instrument was signed by Crawford, Gardner and Shrews-bury (though the last was not named in the body of it), and the plaintiff offered parol proof of their signatures, and that it was delivered, signed as it is, to Jarrett, on the day of the sale, bjr Crawford, and that Gardner and Shrewsbury acknowledged it, and that they were sureties in the same. Upon which, the defendants objected to the admission of the paper as evidence, and of the parol proof of Gardner and Shrews-bury’s acknowledgment that they were sureties, on the ground that the instrument did not shew a joint assumpsit of the defendants, such as was stated in the declaration ; but the court overruled the objection, and admitted the evidence. The defendants excepted.
    2. The plaintiff offered in evidence the record of the action brought by Alderson and Slack against Jarrett mentioned in the declaration: that was an action under the statute 1 Rev. Code, ch. 113, § 7, p. 448, by A. and S. as landlords, against Jarrett, for his taking, removing and selling, under Crawford’s executions, the two yoke of oxen and cart of the plaintiffs’ tenants Wood and Brown, and also for taking, removing and selling divers goods of other tenants of the plaintiffs, without paying the landlords the rent in arrear; the whole of the goods having been found on the demised premises, and so liable to the landlords for the rent in arrear, and having been actually taken by Jarrett himself under a distress warrant for the rent; and there was a verdict and judgment for the plaintiffs A. and S. for 1163 dollars, damages and costs, whereof they entered a release of 581 dollars. Whereupon, the defendant’s counsel objected to the admission of this record in evidence, on the ground that it was variant and different from that described in the declaration ; but the court overruled the objection, and admitted the record as evidence of the damages, *which Jarrett had been compelled to pay, on account of his sale of the property under Crawford’s executions, for the recovery whereof this suit was brought. The defendants excepted.
    3. The plaintiff offered in evidence, three receipts of Reynolds, a deputy sheriff of Kanawha, for moneys paid by Jarrett in satisfaction of Alderson and Slack’s execution on their judgment against him, and offered proof of the deputy sheriff’s hand writing to the receipts; to which the defendants objected, because no reason was shewn for not bringing Reynolds himself as a witness; but the court overruled the objection, and admitted the evidence of Reynolds’s hand writing to the receipts. The defendants excepted.
    4. The defendants offered evidence to prove the value of the property in the declaration mentioned, sold by Jarrett under Crawford’s executions, and that the value thereof was trivial; but the court would not admit any evidence as to the value of the property; and instructed the jury, that if it should find, from the evidence, that the defendants were bound to indemnify Jarrett, then the amount of the judgments recovered against him for selling the property for Crawford, was the measure of his damages, and that the defendants could not, in this action, go into evidence to shew that the damages assessed and adjudged against Jarrett, were beyond the real value of the property, and exorbitant, that being a proper subject of inquiry in the suits against Jarrett, as well as any other damages which the plaintiffs in those suits had sustained by the sale of the property. The defendants excepted.
    Verdict for the plaintiff for 821 dollars, and judgment accordingly: from which the defendants appealed to this court.
    Johnson, for the appellants : Stanard, for the appellee.
    The reporter was not present at the argument, and no note of it was preserved.
    
      
      ParoI Evidence — Written Instrument. — Parol evidence cannot be admitted (unless in case of fraud or mistake) to vary, contradict, add to, or explain, tbe terms of a written agreement, by proving that the agreement of the parties was different from what it appears by the writing to have been. The •rule of evidence, thus stated by Judge Gkeen in the principal case, has met with approval in numerous subsequent cases. See Towner v. Lucas, 13 Gratt. 710; foot-note to Woodward v. Foster, 18 Gratt. 200 (collecting many cases in point); Colhoun v. Wilson, 27 Gratt. 646; Southern Mut. Ins. Co. v. Trear. 29 Gratt. 258; Tait v. Central Lun. Asylum, 84 Va. 280, 4 S. E. Rep. 697; Bonsack Mach. Co. v. Woodrum, 38 Va. 516, 13 S. E. Rep. 994; Kline v. McLain, 33 W. Va. 36, 10 S. E. Rep. 13; Johnson v. Burns, 39 W. Va. 561, 20 S. E. Rep. 687: Howell v. Behler, 41 W. Va. 617, 21 S. E. Rep. 646. Yet, in cases of equivocal agreements in writing, the circumstances under which they were made, may be given in evidence, to explain their meaning. For this proposition, the principal case was cited with approval in Towner v. Lucas, 13 Gratt. 711; Woodward v. Foster, 18 Gratt. 208; foot-note to Talbott v. Richmond, etc., R. R. Co., 31 Gratt. 685; French v. Williams, 82 Va. 466, 4 S. E. Rep. 593; Richardson v. Planters’ Bank, 94 Va. 139, 26 S. E Rep. 413; Crislip v. Cain, 19 W. Va. 483.
      See further, monographic note on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276.
      Bill of Exceptions — Reference to Another Bill. — The facts stated in one bill of exceptions cannot be noticed by an appellate court in considering another, unless the first bill is referred to in the second, and adopted as part of it. To this effect, the principal case is cited in Dishazer v. Maitland, 12 Leigh 529; Zumbro v. Stump, 38 W. Va. 335, 18 S. E. Rep. 447; Klinkler v. Wheeling, etc., Co., 43 W. Va. 221, 27 S. E. Rep. 238.
      And in Hall v. Hall, 12 W. Va. 21, it is said: “It has been repeatedly decided by the court of appeals of Virginia that facts stated in one bill of exceptions cannot be noticed by an appellate court in considering another, except the first bill of exception should be referred to in the second, etc., and except also when a bill of exceptions is taken after all the evidence has been submitted to the jury, and it purports to set out all the evidence, it seems that the evidence set out in this bill of exceptions may be looked to in considering the question raised in another bill of exceptions taken in the progress of the trial. Brooke v. Young, 3 Rand. 106; Crawford, etc., Jarrett's Adm'r. 2 Leigh 639; (Perkins v. Hawkins) 9 Gratt. 649; 1 vol. of Robinson (old) Prac. 346, 347.”
      Bee further, on this subject, foot-note to Perkins v. Hawkins, 9 Gratt. 651; monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
    
      
      *Contracts — Signing by One Not Named in Instrument —Eifoet.—in Beery v. Homan, 8 Gratt. 51, it is said: “The court is of opinion, that to constitute a valid bond of the party, the intention to bind himself must appear on the face of theinstrument; that the signature and seal form a part thereof, and furnish pi itna facie evidence that the person so signing and sealing the bond intended to make himself a party thereto, and to be bound by the stipulations thereof; although the name of the party so signing, sealing and delivering the bond, may not be inserted in the penalty or recited in the condition. The case of Bell v. Allen's Adm'r. 3 Munf. 118, does not actually decide that the bond there offered in evidence, was not the bond of the security because his name did not appear in the body of the instrument, but it was rejected when offered in evidence, on the ground of an alleged variance between it and the bond described in the declaration. If, however, it is to be inferred that the case was decided upon the ground that the bond was invalid as to the surety for the -cause aforesaid, the authority of the case is impaired by the decisions of this court in the cases of Bartley v. Yates, 2 Hen. & Munf. 398; Beale v. Wilson, 4 Munf. 380; Raynolds v. Gore, 4 Leigh 276; and was in effect overruled in Crawford v. Jarrett, 2 Leigh 630. In that case the name of one of the sureties, Shrewsberry, did notappear in the body of the writing; and there was no blank left for the insertion of other names; which has sometimes been supposed to shew an in tention not to exclude other parties who have signed the instrument. Yet the said security was held bound upon proof that he executed the instrument with the. intention of becoming a party thereto. In the case of a sealed instrument declared upon, proof of the execution thereof becomes necessary by the plea of non est factum at law (or the answer in chancery, if a case in equity), putting that fact in issue. The circumstance that the writing declared on in Crawford v. Jarrett, was not under seal, does not affect the principle involved in this question. The intention to become a party to, and be bound by the instrument, is the fact to be determined in either case.”
    
   *GREEN, J.,

without noticing the demurrer to the special counts of the declaration, or of the plea of a former action and judgment for the defendants and the judgment of the circuit court thereon, that there was no such record, said: This case comes up on several exceptions to opinions of the court given upon the trial; the first of which was to the allowing an instrument of writing to be given in evidence, with parol proof as to the time, manner and circumstances of its execution, as not proving a joint assumpsit by the appellants, such as is stated in the declaration. The matter of this exception suggests several questions, which were discussed at the bar: 1. Whether the signing of his name to the writing, without any other proof, made Shrewsbury a party thereto, and amounted to an assumpsit by him, jointly with Crawford and Gardner, to indemnify Jarrett, according to its terms? 2. If not, then whether parol proof, that he executed it with that intention avowed, was admissible? 3. If either of these questions are decided in the affirmative, then whether the paper upon its face states a consideration such as is alleged in the declaration? 4. If not, then whether such a consideration can be proved by parol evidence? 5. Whether the promises alleged, or any of them, are supported by the paper itself? for it is admitted, that if the promise was collateral, it cannot bind Gardner and Shrewsbury, unless it be found in the writing. And lastly, whether the promise be not original and equally binding on all for the same consideration? Of these questions, the first, third and fifth are the most important: if they are decided in the affirmative, the others will be thereby superseded.

As to those three points: It is true, that parol evidence cannot be admitted (unless in case of fraud or mistake) to vary, contradict, add to, or explain, the terms of a written agreement, by proving that the agreement of the parties was different from what it appears by the writing to have been. Yet, in case of equivocal agreements in writing, the circumstances under which they were made, may be given in ^evidence, to explain their meaning ; of which there are many examples in the books; as in ex parte Adney, 2 Cowp. 460, and in the judgment of the chancellor reversing that of the master of the rolls in Bellamy v. Burrow, Ca. Temp. Talbot, 107. In this case, on the day and at the place of sale of the property taken under Crawford’s executions, the instrument in question was prepared, reciting the levj' of the executions, and that the sale of the property was forbidden by certain persons, and binding Crawford as principal, and Gardner as his surety, to indemnify the constable according to law, and was executed and delivered to the constable by those persons, and by Shrewsbury, who was not named in it, but who signed it, as a party. These circumstances, in connex-ion with the terms of the instrument, I think, prove without any other evidence to that effect, that Shrewsbury intended to bind himself, jointly with the others, for its performance, to the full extent to which they were bound; and that they were bound to indemnify the constable, not for what was past, (the seizure of the property under the executions, for that was not unlawful) but for selling and disposing of the property under the executions, and paying Crawford the proceeds of the sale to the amount of his executions; and this was the consideration of the agreement to indemnify him against such a disposition, as is alleged in the declaration.

The next exception is to the admission of the record of a judgment recovered by Alderson and Slack against Jarrett, as evidence, upon the allegation that there was a variance between it and the judgment described in the declaration. All the special counts in the declaration under which it was possible to offer in evidence, any judgment by those parties against Jarrett, describe it as one recovered upon the sole ground of the sale of the property of Wood and Brown, taken under Crawford’s executions, without pa3'ing to them the arrears of rent due' to them from the debtors in those executions; which arrears amounted to 1068 dollars. The record offered in evidence, contained *a declaration of one count only, and claimed damages against Jarrett, not only for removing the property of Wood and Brown, taken under Crawford’s executions without paying the arrears of rent, but for selling other property of other persons also tenants, which he as constable had taken by order of the plaintiffs as a distress for the satisfaction of the arrears of rent, and paying the proceeds of that also to Crawford, in satisfaction of his executions. The jury found a verdict, and the court gave judgment, upon that declaration for 1163 dollars and costs; and the damages must .be taken to have been given upon both the complaints set forth in the declaration. Consequently, the judgment given in evidence, was not such as was alleged by the declaration in this case. It is possible, and indeed seems to be indicated by the fact of the amount of the verdict corresponding with the amount of the arrears of rent and interest thereon, that the court and jury proceeded upon the ground, that an officer taking goods, to however small a value, under execution, found upon demised premises upon which arrears of rent were due, and removing them without the payment of the arrears to the landlord, was responsible for the whole amount of the rent in arrear, though the value of the goods so taken and removed did not amount to a hundredth part of the amount of the rent. If so, the decision was palpably wrong. It is impossible, to give such an effect to the statute, under which alone the landlord can assert a claim in such a case; and it is settled by authority, that the officer is only liable to the amount of the sales of the goods so removed and sold. Henchett v. Kimpson, 2 Wils. 140. We cannot presume, that any such error entered into those proceedings, unless it appeared explicitly on the record. The judgment offered ought not to have been allowed to be given in evidence; the consequence of which was to charge the appellants with damages to the amount of that recovery against Jarrett, in consequence of their engagement to indemnify him for the sale of four oxen and a cart.

*The next exception, in relation to the admission of the sheriff’s receipts to Jarrett, is of no consequence; since the question presented could have no proper effecl upon the result of the cause; the judgment against Jarrett, having the same effect, as proof that he was damnified, whether he had paid it or not.

The last exception is to the refusal of the court, to admit the evidence offered by the defendants to prove the value of the property taken and sold under Crawford’s executions. The bill of exceptions states no facts,, upon | which this question turned; and though we see them in the other exceptions, we cannot notice them in considering this, as has been repeatedly decided. If such evidence, under all circumstances that could exist would be proper evidence for the defendant, ■ then the evidence was improperly excluded ; but if it might be proper evidence under some and not under other circumstances, we cannot say that the rejection of it in this case, was wrong, upon any thing appearing in this bill of exceptions. Now, such evidence might be proper or improper, according to varying circumstances: if for instance, the plaintiff in this case, had produced a record, shewing that the recovery against him was solely on account of the estimated value of the property sold under Crawford’s executions, and for the sale of which the defendants were bound to indemnify him, the real value could not have been given in evidence to contradict the verdict against Jarrett, however extravagant it, might have been in the estimate of the value of the property; for that would be still the real amount of t'he damages, against which the defendants contracted to indemnify him. But, if the declaration had been so framed as to describe the record in the suit against Jarrett, and it had appeared that the aggregate damages given against him, was partly for removing the property taken under the executions and partly for the improper disposition of the other property distrained for the rent; then, evidence of the value of the property sold under the executions would not only have been proper on the part *of the defendants, but indis-pensibly necessary on the part of the plaintiff, in order to separate that portion of the damages given on account of the property sold under the executions, in respect to which the defendants were bound to indemnify him, from that portion given on account of the other property, as to which the defendant was under no such obligation. Or, if it had appeared, that the whole amount of the arrears of rent and interest on them, had been adopted by the court and jury, as the measure of the damages given against Jarrett, without regard to the value of either description of the property; then, a question would have arisen (as it would, if it appeared that no wrong had been done by Jarrett to the landlord, but by the taking of property under the executions) whether evidence of the value of the property so taken, would or would not be proper in that case? a question which the court declines to give any opinion upon now, because it is not presented by the exception. And, for the same reason, we decline to give any opinion upon other points that have been discussed; such as the effect of the judgment against Jarrett, as against the appellants.

CA.RR, J.

This case has been so fully investigated by my brother Green, and I agree with him so exactly in the general current of his remarks, that I shall be very brief: indeed, I should say nothing, but to exclude a conclusion, as to a particular point, which might follow from my silence. I think the written promise of indemnity, with the parol evidence of the time and manner of its execution and delivery, was properly admitted under the declaration; and that Shrewsbury was bound by that written promise. With respect to the record of a recovery by Alderson and Slack against Jarrett, offered as evidence by the plaintiffs, and objected to, and that objection overruled ; I am clearly of opinion, that the court erred in admitting that record, because it differed, in a very material point, from the record described in the declaration; and on this point I concur *that the judgment must be reversed, and the case sent back with proper directions. As this record is excluded, I do not think it necessary to the decision of this case, that the court should pronounce upon the weight, effect and conclusiveness of it, in case it had been so described by the declaration as to have made it evidence. And this is the point on which I wish to declare (not that I differ with my brother Green, for my impression is that he is right, but) that I have not so examined the question, as to have made up an opinion on it: and as we are but a court of three, and are just at the busy close of a long session, I have thought it best to leave this point open for future discussion, so far as this case may have a bearing upon it. As to the other points upon the subsequent exceptions, I think with judge Green.

BROOKE, P.,

concurred with the other judges, in the judgment that was entered; which was to the following effect:'That the circuit court erred in allowing the record mentioned in the second bill of exceptions, to go as evidence to the jury, there being a material variance between that and the record described in the first three counts of the declaration ; and that the judgment is erroneous: therefore, it is considered that the same be reversed &c. and it is ordered, that the verdict be set aside, and the cause remanded to the circuit court, for a new trial to be had therein, in which the said record is not to be allowed to be given in evidence, if offered.  