69 P. 51 | Or. | 1902
after stating the facts, delivered the opinion of the court.
There are but two errors relied upon for reversal. It is first contended that the plaintiff, at the time he purchased the note, agreed and guarantied that the defendant should never be held liable thereon in any capacity, and that such an agreement constitutes a valid defense to the action. The question arose upon an attempt to prove the express warranty set up in the answer by parol, which the court refused to permit, under the idea that the contract, being in writing, could not be thus varied. The theory of the plaintiff is that the indorsement of the note fixes and determines the relation of the parties to the transfer, — that is, imports a contract in writing between them, — and that, like other contracts of the kind, cannot be varied or controlled by a contemporaneous verbal agreement, as it is presumed that the whole understanding of the parties has been incorporated in the writing. The case of Smith v. Caro, 9 Or. 278, and other cases of like nature, are relied upon in support of the contention. In the ease cited the indorsers simply wrote their names upon the back of the note; and the court held that by the law merchant the indorsement imported a contract in writing, which served not only as a means of transfer, but to fix and determine the liabilities of the indorsers, and that it was not competent to vary the contract by any parol agreement that might have been entered into at the time.
The question thus recurs whether defendant had reasonable notice, or such under the circumstances attending the controversy as required her to defend or abide the consequences. The notice given her was of very short duration, and we are not prepared to say that it would have been sufficient ordinarily, but she actually attended as a witness, and gave evidence on trial; and, what is of far greater consequence, and a circumstance of decisive moment, she agreed at the time she sold the note to testify in the ease, if called upon; thus anticipating a suit at the time, and impliedly indicating her willingness that plaintiff should conduct the defense in her behalf, and that she would aid him by her testimony, if desired. The circumstances are such as to make the decree binding upon her. In support of these views, see Giffert v. West, 33 Wis. 617; Dasham v. Ullman, 74 Wis. 475 (43 N. W. 321); Davis v. Smith, 79 Me. 351 (10 Atl. 55); City of Boston v. Worthington, 10 Gray, 496 (71 Am. Dec. 678); City of Chicago v. Robbins, 67 U. S. (2 Black) 418; and Robbins v. City of Chicago, 71 U. S. (4 Wall.) 658.
The ruling of the trial court as to this latter contention was