39 N.W.2d 645 | Iowa | 1949
Apparently the note was drawn upon a printed form. It was undated. The petition alleged it was executed by defendant to John H. Hendricks, plaintiff's testate, on or about March 1, 1944. It was for $11,000, provided for interest at seven per cent per annum from date, payable semiannually, and contained other provisions not here material. At the bottom was the statement, "Due March 1-45." On the back were three endorsements:
"Interest paid March 1-1945
Interest paid in full to March 1, 1946
Interest paid in full to March 1, 1947."
The executor prayed judgment for $11,000 with interest at seven per cent from March 1, 1947. Defendant's answer alleged as an affirmative defense, that on or about October 15, 1943, he owed Hendricks an unpaid balance of $3,887.07 on a $12,000 note; that Hendricks orally stated he was in difficulty and needed defendant's note for $11,000 with interest at seven per cent per annum and that if defendant would give him such a note and pay him $440 per year, commencing with 1945, until the death of Hendricks, Hendricks would surrender the $12,000 note and the $11,000 note would be canceled and surrendered to defendant upon the death of Hendricks and defendant would not be indebted to Hendricks after his death, or to his estate; that *1361 Hendricks also stated that upon payment to him of each installment of $440 he would endorse upon said note interest to the preceding March 1; that thereupon defendant agreed to and did on said date sign and deliver to Hendricks the $11,000 note prepared by Hendricks and the $12,000 note was surrendered to defendant; that defendant paid Hendricks $440 during each of the years 1945, 1946 and 1947 and fully performed the agreement between him and Hendricks; that after the death of Hendricks, in 1947, his executor refused defendant's request to return said note to defendant; that there was no consideration for the note sued on other than as above stated.
Plaintiff's reply asserted defendant's affirmative plea was not a defense because it was an attempt to vary by parol the terms and provisions of the written instrument in suit. Defendant introduced evidence tending to establish the facts pleaded as an affirmative defense. Plaintiff-executor admitted decedent had informed him defendant was paying only $440 per year and not seven per cent as provided by the note. Plaintiff testified decedent made the first endorsement on the back of the note; that plaintiff made the second endorsement at decedent's request and also the third endorsement after decedent's death when defendant produced a canceled check made to decedent for $440 which evidenced the fact that interest on the note had been paid to March 1, 1947. No witness for plaintiff attempted to explain why, upon payment of $440, defendant was each year credited with interest for one year. The trial resulted in a verdict and judgment for defendant and this appeal. Plaintiff made no motion for directed verdict nor is it contended the evidence, if admissible, was insufficient to support the verdict of the jury.
[1] I. Plaintiff contends the pleaded affirmative defense and the evidence introduced in support thereof were obnoxious to the parol-evidence rule and that the court erred in overruling his motion to strike that division of the answer and his objections to such evidence. The briefs discuss the legal propositions at some length and refer to various texts and decisions. However, the precise proposition here involved has already been determined by this court. *1362
In Ball v. James,
The decision states:
"These instruments were complete in themselves. The alleged oral undertaking neither added thereto nor detracted therefrom. It did not purport to vary either. It served merely as an inducement to the entering into the written contracts on the terms stated therein. * * * neither the note nor the mortgage recites the consideration, and, though this is presumed as between the parties, it is subject to proof, and the evidence that, in addition to an amount of money loaned, there was an executory agreement, in no manner violates the rule excluding parol evidence tending to vary the terms of a written instrument."
Another decision in point is Herron v. Brinton,
"In each case, the answer pleads that the real agreement between the parties was for the payment of interest on the sum stated during the life of the payee, and that the note given was made and delivered, not as a promissory note, evidencing a debt for the amount named, but as evidencing and securing to the payee the interest on the principal sum named, during his lifetime.
"In each case, also, the question of law is raised whether the facts so pleaded state a defense to an action on the note. We there held, in effect, that the plea not only goes to the question of the consideration of the note sued upon, but was also within the rule permitting proof of conditional delivery, as well as the rule which permits parol evidence of the discharge of a written agreement `although the transaction involves proof of a collateral parol agreement.'" *1363
Among other cases applying or recognizing the rule are Sutton v. Griebel,
[2] II. Defendant testified decedent came to defendant's home in October 1943 and there was a conversation between them concerning a note. He was then asked if Exhibit A (the note in suit) was the note he signed that evening. The court overruled plaintiff's objection to defendant's competency under the dead man statute, section
In argument plaintiff assumes the signing of the note by defendant was a personal transaction between defendant and decedent. However, the record at the time the ruling was made did not definitely show this. Although the trial court might have inferred the note was executed by defendant and delivered to decedent in connection with the conversation, we do not think it was required to draw such inference. Plaintiff could have shown the circumstances by cross-examination preliminary to the objection or when the circumstances were subsequently disclosed by defendant or other witnesses he could have renewed his objections and moved to strike the answer. He did neither. In re Estate of Hoyt,
[3] III. Defendant's wife testified decedent, John Hendricks, came to their home in October 1943 and had a conversation with defendant in which she took no part; that decedent "pulled this $12,000 note out of his pocket and laid it down there and he says there is somebody prying into our business and it isn't any of their damn business what we do and I want you to give me a note for $11,000. Ed says I don't owe you $11,000. I don't even owe you $4000 on this $12,000 note. John said I know you don't but I need a note for $11,000 bearing 7 *1364 per cent interest beginning in 1943 and if you will pay me $440 a year beginning in '45 at the time of my death you can pick up this $11,000. Ed says I can't pick up that note. They won't give it to me. Oh, yes, John says, I will fix that. * * * John says further, you can pay me $440 during the year any time and I will mark interest paid up to the first of March on the note. * * * Yes, Ed said he would give him the note. Mr. Hendricks wrote out the $11,000 note and threw the old $12,000 note on the library table. My husband signed the $11,000 note and Mr. Hendricks put it in his billfold. No money changed hands at that time between John Hendricks and Ed. My husband took the old $12,000 note and put it in the cupboard. I do not know what became of the $12,000 note. I have looked for it but have been unable to find it. The old note was dated March 1, 1930 and was due March 1, 1945. It was payable to John Hendricks and it was signed by my husband, Ed A. Dunnick."
The witness testified also she and her husband later examined the $12,000 note and the endorsements thereon in decedent's handwriting and figured the unpaid principal and interest amounted to $3,887.07. A sister of defendant's wife also testified to the transaction between decedent and defendant.
The testimony of defendant's wife concerning the transaction between decedent and her husband was received over plaintiff's objections to the competency of the witness, under the dead man statute. Error is assigned to the overruling of these objections. Plaintiff contends defendant's wife was incompetent because she participated with the others in social conversations before and after the business transaction between decedent and defendant in which she testified she did not participate.
Plaintiff asserts "there was but one `conversation' that evening and it lasted for the full duration of decedent's visit * * * [two hours]." The record is to the contrary. Nor has the dead man statute been interpreted as requiring a holding that there may be only one transaction or communication during the entire time two or more persons are in the same proximity.
In Calhoun v. Taylor,
"On cross-examination [of plaintiff's husband], it appeared that the witness had engaged in conversation with decedent on other subjects while at the table, but had not participated in that concerning his dealings with his children. That the witness may have spoken with decedent on some other subjects disconnected from the conversation exclusively between father and daughter did not preclude him from testifying to what was said in the latter. The test is whether the witness objected to as incompetent took part in the particular conversation on the subject inquired about, and if he did not, his testimony is to be received for what it is worth."
In O'Dell v. O'Dell,
[4] IV. Plaintiff complains also that over his objections to their competency under the dead man statute, defendant and his wife were permitted to testify to the contents of the old $12,000 note which the evidence showed had been lost after decedent surrendered it to defendant. The orders overruling the objections were correct. The testimony of the contents of the old note which was executed by defendant appears to have been based upon an examination of the note a day after it came into defendant's possession and not upon a personal transaction between defendant and decedent.
In Erwin v. Fillenwarth,
"It is not shown that plaintiff's mother was even present at the time he testified he saw her signature and the contents of the writing. * * * But it was satisfactorily shown that the contract had been lost. This being so, why may plaintiff not testify as to what he observed in regard to the contract if the transaction was past?"
Chidester v. Harlan,
[5] V. Two forms of verdict were submitted to the jury: (1) a verdict for plaintiff for $12,388.14, the principal and interest on the note in suit, and (2) a verdict for defendant. Plaintiff complains that the court refused to submit an additional form of verdict assessing the amount of plaintiff's "recovery at $....." This complaint is without merit. The action was upon a written promise to pay $11,000, with interest at seven per cent. Judgment was prayed for that amount with interest. The only question of fact was whether defendant had established his affirmative defense. Under the issues plaintiff was entitled to recover all or nothing. The forms of verdict were correct. — Affirmed.
All JUSTICES concur. *1367