Allen v. Rundle. in the recent case of Allen v. Brown, 124 Mass., 77, held that parol evidence was not admissible to show that indorsers who indorsed a promissory note before delivery to the payce, were accommodation indorsers or sureties only. See other cases to the same effect cited in the opinion by Soule, J. 3. Again, the plaintiffs, by wholly ignoring the existence of the note and written guaranty, except as forming an item in the history of the case, propose to hold the defendants on their mere verbal promise. Allowing the plaintiffs to have their way in this regard, the statute of frauds would be troublesome, to say the least, and the want of consideration proved would be an insuperable objection. But the true and sufficient objection to this claim is, that by the rules of law the written contract, being clearly expressed and deliberately made, cannot be ignored, for "it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing. After this, to permit oral testimony, or prior, or contemporaneous, or subsequent conversation, in order to learn what was intended or contradict or vary what is written, would be dangerous and unjust in the extreme." Glendale Manf. Co. v. Protection Ins. Co., 21 Conn., 27; 1 Greenl. Ev., § 275. 4. Some of the legal principles before mentioned also stand in the plaintiffs' way when they would invoke the aid of the doctrine of novation. In the place of the written evidence of the defendants' undertaking, they must substitute by parol evidence another contract, whereby the defendants directly assumed upon themselves the payment of the plaintiffs' debt against the corporation. And besides this, even the parol evidence fails to make out some of the essential elements of novation. Not only must it appear that the corporation owed the plaintiffs, but that the defendants owed the corporation, and that by the new arrangement between the parties the two original debts were absolutely discharged. It is not even found that the defendants owed any debt to the corporation, and of course no such debt was discharged. VOL. XLV.-68 Allen v. Rundle. It is not found that the plaintiffs' debt against the corporation was discharged. It is found that the original notes were given. up, which is evidence tending to show such a fact, but is by no means equivalent to finding a discharge. 5. Finally, we mention as one fatal objection to all modes of charging the defendants primarily with this debt, under the common counts, the want of consideration moving from the plaintiffs to the defendants. The court expressly finds "that there was no evidence of such consideration except as hereinafter appears." In the detailed statement of facts which follows, no such consideration is disclosed. As we have already seen, not a dollar of money or property ever passed (or was ever promised) from the plaintiffs to the defendants. All went to the corporation alone. It is true that the defendants were stockholders; but as such they had no legal identity with the company, but were in contemplation of law as much strangers and third persons as if they had never heard of such a corporation. Undoubtedly they took a deep interest in the success of the corporation, and what they verbally said and promised is to be construed with reference to this fact, and also with especial reference to the principal fact, that the Benedict note with the written guaranty of the defendants was accepted by the plaintiffs, and must have been regarded by all parties as embodying all the essential parts of the transaction. A consideration is attempted to be shown in the fact that the amount of the old notes, given up by the plaintiffs, when the guaranteed note of Benedict was delivered to them, was afterwards credited as so much cash on Benedict's subscription, which it is said had the effect to reduce by so much the liability of the defendants on account of that subscription. There are several answers to this claim. In the first place, it must be borne in mind that the liability referred to was a mere contingent liability, and was entered into not by the defendants merely, but by fourteen other persons, in no way concerned in this transaction, and that the nature of that liability is not to be determined by parol evidence, but by the written condition of the bond given to Allen v. Rundle. Benedict. By the terms of the condition of this bond it will be seen that there was no obligation on any of the signers to pay Benedict any thing until he had first been compelled to pay upon the call of the directors, and then only upon the express proviso that Benedict should transfer to the person or persons so re-paying him a proportionate amount of the stock standing in his name. These provisos were not complied with, and there was no certainty that any liability would ever accrue under that bond, for Benedict might choose to keep the stock himself, and pay for it without looking to the obligors for reimbursement. But another conclusive answer is, that it nowhere appears that at the time of the execution and delivery of the Benedict note to the plaintiffs, there was any understanding or agreement whatever that the amount of the note should be credited on Benedict's subscription; and the defendants are in no way responsible for that application of the note. The finding is explicit on this point; the language is as follows:-"Thereupon Seeley (who was financial agent and manager of said new company) without authority from Benedict put the amount of the note in suit to the credit of Benedict on account of the subscription made as aforesaid by him for said $30,000 of the stock of said new company." Seeley thus, of himself, treated the note in suit as so much cash. paid by Benedict towards his $30,000 subscription to the stock of the new company. For the foregoing reasons we advise judgment for the defendants. In this opinion the other judges concurred. 45 540 59 504 Buxton v. Broadway. JONATHAN BUXTON vs. ORMAN BROADWAY. A petition in equity averred that the respondent had by fraudulent representa tions obtained of the petitioner his note and had brought an action upon it, and prayed for the cancellation of the note and a perpetual injunction against the prosecution of the action. The note was non-negotiable, was dated in June, 1872, and had seventeen years to run from its date. The petition was brought in December, 1873. The respondent demurred to the petition on the ground that the petitioner had adequate remedy at law by a defence to the pending action. Held that, as the petitioner had no control over the action at law, but the respondent might withdraw it and wait several years before bringing another, the remedy at law was not adequate. BILL IN EQUITY for the cancellation of a note and an injunc tion against the prosecution of an action at law upon it; brought to the Superior Court. The bill alleged that the note was obtained by fraudulent representations, which were particularly set forth; that it was for $158.61, was dated June 10, 1872, and was payable to the respondent on demand with interest from date; that an action. at law had been brought upon it by the respondent against the petitioner in the Court of Common Pleas of Fairfield County, which action was still pending; and that the peti tioner had not adequate remedy at law; and prayed for a decree that the note should be canceled and delivered up to the petitioner, and that the respondent should be perpetually enjoined against the prosecution of his action upon it. The respondent demurred to the petition, and the case was reserved upon the demurrer for the advice of this court. J. H. Olmstead and E. S. Schofield, in support of the demurrer. 1. A court of equity will not relieve where there exists an adequate remedy at law; this is prohibited by positive legislative enactment. 2. The petitioner has a complete legal remedy by a defence to the action on the note. The petition alleges that the note was obtained by fraud and was without consideration. Both these matters are good defences at law. Buxton v. Broadway. 3. The note is non-negotiable on demand. An assignment by the respondent cannot affect the right of the petitioner to defend against its infirmities in the hands of a third person. 4. The petitioner does not allege, except in general terms, that the petitioner has not a remedy at law, nor that any unconscionable advantage is to be gained or is attempted by the respondent in his action on the note, nor that the petitioner has been deprived of his defence at law or is in danger of being deprived of it. Courts of equity are reluctant to interpose their summary authority by injunction to restrain proceedings at law unless one of the above reasons exists. Roberts v. Ripley, 14 Conn., 553; Bigelow v. Hartford Bridge Co., id., 580; Phalen v. Clark, 19 id., 435; Pearce v. Olney, 20 id., 553; Thompsonville Scale Co. v. Osgood, 26 id., 19. J. B. Curtis and S. Fessenden, contra. PARK, C. J. If the petitioner could compel the respondent to prosecute to final judgment the suit he has commenced on the note in question, then it might be said with truth that he has adequate remedy at law for the grievances set forth in his bill. But the petitioner has no such power over the respondent or the suit; neither does the law furnish him any means of acquiring it. The suit is under the entire control of the respondent, who may withdraw it at any time before the verdict of a jury or a finding of the facts by the court; and, abiding his time, he may take an unconscionable advantage of the petitioner when his witnesses are dead or have been scattered to parts unknown, or when the facts with regard to the fraud shall have faded from their memory. The note has seventeen years of life from its date; and if it be true, as is set forth in the bill, that it was obtained from the petitioner by fraud, it may well be expected that the respondent will use all the means in his power to prevent the petitioner from exposing its character on the day of trial; and to this end he will take all the advantage to be gained by delay to accomplish his purpose. It is clear therefore that we cannot take into account the fact that there is a suit at law now |