60 P. 754 | Kan. | 1900
The opinion of the court was delivered by
A phase of this controversy has been in this court before. (Brigham, v. Jones, 48 Kan. 162, 30 Pac. 113.) Jones & Everetts, a firm of merchants, were indebted to the Citizens’ Bank of Emporia and certain others, and they executed an instrument, intended by them as a chattel mortgage, to secure the indebtedness of the bank and the others as preferred creditors. It was executed to J. W. Eastman as trustee. J. W. Brigham & Co., to whom Jones &
After the decision of this court viewing the instrument as a deed of assignment, J. W. Brigham & Co., in bonjunction with certain other unsecured creditors,
The principal contention of the defendants in error is that parol evidence is inadmissible to show the intention of the parties to such an instrument as the one in question, except when it becomes necessary to do so in order to the prevention of fraud. We know of no such limitation upon the general rule of the admissibility of evidence in this class of cases. Where the phraseology of an instrument is doubtful or ambiguous, meaning can be given to it by showing the inducing causes to the making of it and the facts and circumstances surrounding its execution and involving the parties to it; and generally, evidence not contradictory of the language of an instrument but
The rule of admissibility of parol evidence to show the intention of parties in the making of written instruments is limited to evidence of the facts and circumstances surrounding the transaction and the parties to it, and to the acts performed by them in reference to it. A party to a writing is not permitted to state the secret intention with which he executed it. The defendants in error claim that this limitation upon the rule was overstepped by the introduction of some of the evidence in the court below. We do not think so, except, perhaps, in one or two instances. However, in those instances no objection was made at the time the evidence was given. Some general objections were made as the several witnesses for the defendants below, the plaintiffs in ei'ror here, were called, evidently in anticipation of the character of the testimony that might be asked for and given, but no objections were made as the questionable testimony was elicited during the examination of the witnesses.
Another contention of the defendants in error is that the former decision of this court holding the in
The subject is discussed in Van Fleet’s Former Adjudication, volume 1, section 278. A case cited by the author, and quite nearly in point, is Robinson v. N. Y. L. E. & W. Ry. Co., 64 Hun, 41, 18 N. Y. Supp. 728. In that case 'suit had been brought to recover certain profits alleged to be due on a contract. The trial court ruled against the plaintiff for the reason that it had not been shown that any
Some other objections to the admission of evidence tending to show the intention of the parties to the instrument in question were made by the defendants in error. They are not tenable.
The judgment of the court of appeals is therefore reversed, and that of the district court is affirmed.