Plaintiff claims in this action to be the assignee of a note for four hundred dollars, executed to Mrs. Malinda Sherman, and sues defendant for its cоnversion.
The circuit court refused the following instructions asked by plaintiff:
“1. The court instructs the jury that the evidence of ..the verbal agreemеnt made between Mrs. Sherman and defendant, Bowen, as deposed by defendant and his witnesses, is withdrawn from the jury; the same being incompetent аnd not pertinent to any material issue in the cause.”
“2. Defendant admits in his testimony that his authority to act as the agent of Mrs. Sherman was revokеd before the plaintiff’s purchase of the note in question; and from and after that time he was not authorized to negotiate it, and you should find for plaintiff in such sum as the note was reasonably worth at the time of bringing^suit.”
‘ ‘ 8. That the written receipt and contract given by defendant to Mrs. Shermаn at the time of her delivery of the note in question to him, is the only evidence before you as to the terms and conditions on which the defеndant took and held said note.”.
And the court of its own motion gave these instructions :
“ If the jury believe from the evidence in the cause •
“ If the jury believe from the evidence in the cause, that defendant and Mrs. Sherman had an agreement that defendant should negotiate said note and with the proceeds pay off one hundred and twenty dollars to himself and a note belonging to Speicberger Bros., and that sаid Speicberger Bros, note was assigned to defendant Bowen by agreement with Mrs. Sherman with such an understanding, and L. F. Cottey, attorney for defendant, notified plaintiff thereof before he purchased the note, then the verdict should be for the defendant, if the jury further believe from the evidence the amount of said claims exceeded or even equaled in value the said nóte.”
“ Although the jury may believe from the evidenсe in the cause that defendant may have had an agreement with Mrs. Sherman to negotiate the note in question, and with the proceeds to pay off claims to defendant and Speicberger Bros., the verdict should be for the plaintiff unless the jxiry further believe from the evidenсe that plaintiff had notice of said agreement before his purchase of the note in question.”
“Although the jury may believe from the evidence in the cause that plaintiff, before he purchased the note in question, had notice of the fact that defendant had a claim of one hundred and twenty dollars for himself and
These instructions fully and fairly covered the law and facts of the case as developed by the pleadings and evidence. The abstract of the plaintiff’s counsel is wholly unreliable, as I have found by an examination of the transсript in the cause. That transcript contains abundant testimony on the part of defendant himself, and of Cottey, his attorney, showing that plaintiff, bеfore he bought the note in question, was fully apprised of the liens which defendant had on the note and its proceeds to satisfy certain advances he had made to Mrs. Sherman by special contract with her. This made out defendant’s case, according to the terms of his answer; and the instructions given presented the theory of the plaintiff that he purchased the note prior to maturity in good faith and without notice of any liens on it.
It is contended here that the verbal testimony, just referred to, was improperly admitted. This position is untenable. This oral evidence in no way contradicted or varied the receipt given by defendant to Malinda Sherman, for the negotiation of the nоte and the payment to her of the proceeds. That receipt was perfectly consistent with the verbal agreement madе at the time' the note was delivered to defendant, that its proceeds, when negotiated, should be applied to the payment of advances already, made by defendant. The rule which prohibits the introduction of parol contemporaneous evidencе, does not apply when the original contract was verbal and entire, and a part only was reduced to writing. 1 Greenl. Evid., sec. 284a; Rollins v. Claybrook,
In this case, under the authorities cited, parol evidence was аdmissible, whether offered to show that the original contract was- verbal and only partly reduced to writing, or that the parol portion оf it was an independent contemporaneous collateral agreement, relating to the same subject matter, or that, subsequеntly to the execution of the receipt, a different and additional contract was entered into between the parties in relаtion to the advances already made by defendant, and the course he was to pursue.in relation to the Speicberger notе, and its payment out of the proceeds of the note in controversy. The evidence is sufficiently comprehensive to plaсe the admissibility of parol testimony under either one of the heads mentioned. In relation to Mrs. Malinda Sherman being a married woman, and, therefore, incompetent to make the contract with defendant in regard to the note, it is sufficient to remark that, under section 3296, Revised Statutes, and a-recent ruling of this court, she was, in regard to the note in suit, a femme sole, with full powers as such. Blair v. Railroad, 5 West. Rep. 449; s. c.,
For the reasons aforesaid, judgment affirmed.