Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-08

l. G. Williams MearesOr, AIoEsy Co. and Barser
Dihendefsr
This bill was Eled sg.mss MeGresor, Allowsy {
Co for sn account OF a large qualify Of tobace
ssId By them as Commission Merchants in New Or
4 leaus for Barker Difendsrfer shipped from
Cadiz Kentucky, in which he claimes 70 be inter
ested 70 the extent Of ore third. They claim the
whole proceeds under assigBmers or mortgage
I made By thes complainant sLd Baker ana Differ
de1, en- the 18th Of jane, 1854, to secure lsrg.
balance due 10 them from 3 s D. for advances ans
acsepiances
Tfat the tobacco was purchased by Wesley Gum
as agent for the firm Of D. D. and Williams. a
I CadtK, y net e9ntrOserted.
The name Of Williams was not used In the trans
actions but that By written contract between hin
/ and D he was entitled. for the services 10 b
rendered by him. TO third Of the net Pro6;s, il
not disputed aBd ghst large profit vas made there
/ Is no doubt Nor is it pretended that he vas in
deb,sd 70 MEG A. & Co., except 70 the advances
made to his partners for this particular adventure
But az he ions in the deed Of mortgage il is in
sisted he is pYecluded from any recovery, as the
whole proceeds insufficient to discharge the
debt Of B s p. to them, for which the assignment
vas made, and 3 & d. have failed. . pen these
grounds. his claim to an account against Meg A.
Co is resisted. And this de'ease must certainly
be ssfu unless be can avoid his deed upoa the
ground OF fraud in obtaining bis signature to it, on
the part Of Nee, A. & Co. This be charges in his
BILL and the only question is, whether IL il sustain
ed BY The proof
He says in the bill that, '.bsiug informed By the
pariies Barker Difenderfer, and MeGregor, Al
loWsy s. Co, tina, il would deprive him Of no right
claim but merely show his the transfer
Of the interest Of his eopsEtners D. S D. and sub
stiiuis MIG Al & Co., 10 The position Of Aessrs
b s "a bi~ primers, aud wi b that view. sud for
no other purpose, lie did sign his name. Il Is fur
iher charged that, ''undsr this agreement Nee >,
Co. did take the position occupied By D /,
II f,.I- -. Il. : 4 49,.
inc their possession and took the IN management Of
shipping and selling under their own direction. and
have been managing he same and receiving the re
turns ever since" lie charges that the tobacco in
which he was Interested as per contract with B s
D, which passed under this deed, yielded profit
Of from $50 900 SIS 00O in which be is entitled
10, and claims one third.
The charge in the bill, in relation to the creum-
stances under which the deed Of mortgage was
signed By Williams. is not met and denied BY the
answer, but rather evaded By reference to the
Clerks certificate Of the fact Of acknowledgment
before him in the usual form, ami reliance upon
the familiar rule that writing cannot be changed
or varied By parol-
Mr.. Bankhead Of the firm Of MEG. A. & Co., APP
piled to Barker Diffsnderfer, who were then in
failing circumstances, and in arrears 10 his firm for
advances t. very large amount, TO secure them By
the assignment in question, and they sgreed TO do
so, and execute the deed. Il was considers ed neees
that purpose the parties met in the Office Of Shack
clifford, an attorney in Ciarksvile, and sent for
Williams. Mr.. Shaekelford proved that "Bankhead
was anxious 10 get the conveyance Williams re-
fused al first 70 sign it. IL had already been pre-
pared and signed By Barker Diffsnderfer =
Williams asked me il his interest would be compro-
missed BY signing the paper Told Aiu that Il lroEld
not Aud it was understood that after Iaying the
advances msds BY them, if there was any profit il
was to be paid TO Williams" He stated that Will
liams was dis inctly informed ~ Bsnkhesd that sit
was not intended to deprive him Of the CadiE to-
bAccO"
Wilcox, another witness who was presest, says L.
G. williams refused 10 sign the instrument until
Shaeke;fOrd and Bankhesd assured him that his iu-
in terest tobacco nat TO &c Affected in any Way
whatever.
There can be no doubt at all from the evidence.
that Williams ony signed the deed for the purpose
Of placing the assgaees in the place of his partners
under assurance of BaHkhes5, and his attorney Mr..
Shaekelford that such only the effect, AID that
his interest should be in nOwise affected by il in
the Csdiz tobacco. Il would be positive fraud
upon him to give IL any other effect OF in any Way
10 eonPrOmit his rgat as partner 70 eno-third Of
the net profits on that particular adventure.
II is no infringement upsn the rule Ivy which
writings protected from change by parol to give
effect 10 this theory. Il cannot be held question
ed that this rule excludes parOl evidence Of mistake
or fraud. Il would surely be a palpsble fraud upOn
meut to this deed undsr tie most positive and IN
equivocal assurances, that it transfer or
jeOpardiee his rights backed By leg Al counsel aud
then claim that 1t dsnUded him Of al right in the
thing.
The parties will be held to their agreement With
him without any change Of the Wrili0g, but inde>
pendent Of it. and upon the distinct and clearly
tabished understanding Of the parties at the time.
The complainant will be placed in the precise posi-
ton IN all respects as be had nOt signed the Decd
or as he would be, if the understanding of all the
parties, whea be signed It, had zen made part
of it, and this upon the ground that q fraud vas
Practised upon lin, if full effect be given 10 the
deed IS IL ia nov claimed, being contrary to both
the promises and assurances Of the rarties.
The Chancellor has correctly decided, and order
ed all necessary to settle the rights and do
ample justice TO all the parties, and affirm his
decree in every particular CARUTHERs.
correct copy. J. P. CLARK, Clerk.
Nicholas ". Ward and others