Brown v. Meserve

Decision Date03 January 1899
Docket Number507.
PartiesBROWN v. MESERVE.
CourtU.S. Court of Appeals — Seventh Circuit

S. A Lynde, for plaintiff in error.

George Burry, for defendant in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

The Episcopal City Mission recovered in the name of George W Meserve a judgment against John B. Brown, the plaintiff in error, for the sum of $14,051.44,-- an alleged deficiency remaining after foreclosure of a mortgage made to the mission on March 1, 1877, upon lot 2 Purchase street, in the city of Boston, to secure the payment of a promissory note of Meserve to the mission for $19,500. On May 4, 1877, Meserve had conveyed the mortgaged premises to Brown by a deed poll which contained a stipulation or recital that Brown should assume and pay the mortgage. The action was brought in the name of the mission, but afterwards the name of Meserve for the use of the mission was substituted, to enforce the obligation which Brown incurred by accepting the deed. The court sustained a demurrer to a special plea, but the matter of the plea, if a good defense, was provable under the general issue, which was joined, and the error assigned on the ruling is therefore not available.

At the time of the delivery of the deed Meserve and Brown executed a written agreement, which it is now contended amounted to a release of Brown's assumption of the mortgage; and error is assigned upon an instruction to the contrary which the court gave to the jury. That contention cannot be considered, because the record shows that in the court below counsel for the defendant disavowed any such interpretation or construction of the agreement, saying that it had no bearing upon the question.

Pending the suit, Meserve executed to the mission an assignment of all causes of action which he had against Brown, and later executed to Brown a release of the contract of assumption. The assignment and the release were put in evidence. Evidence was also offered and admitted, subject to objection and to final control by instruction, which tended to show an agreement or understanding between Meserve and Brown at the time of the delivery of the deed that in certain contingencies, which afterwards turned out as anticipated Brown should not be bound by the contract of assumption, and that they both intended and supposed that understanding to be embodied in the written agreement then signed by them. The evidence also tended to show Meserve to be insolvent. The court instructed the jury to the effect that parol evidence was not admissible to vary the terms of the deed in respect to the contract of assumption, nor to vary the terms of the contemporaneous written agreement, and that if the whole contract of the parties 'was put into the two agreements, as they say they thought it was, then those two agreements should govern the rights of the parties'; that the release made to Brown by Meserve did not constitute a defense to the action, if Meserve was...

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3 cases
  • St. Louis, Iron Mountain & Southern Railway Company v. York
    • United States
    • Supreme Court of Arkansas
    • 1 Noviembre 1909
    ...Appliance Act abolishes the defense of assumed risks only; and does not apply to the defense of contributory negligence. 106 S.W. 441; 91 F. 229; 10 Am. Neg. Rep. OPINION FRAUENTHAL, J. This was an action instituted by A. B. York, as administrator of the estate of J. C. York, for the benefi......
  • Cowell v. McMillin
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Febrero 1910
  • Cleveland, C., C. & St. L. Ry. Co. v. Baker
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 3 Enero 1899

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