139 Va. 458 | Va. | 1924
after making the foregoing statement, delivered the following opinion of the court:
■' The assignments of error on behalf of the plaintiff present but a single question for our decision, which is, indeed, one of fact, namely:
1. Was the condition, upon which the note sued on was given by the maker, a condition precedent, without the occurrence of which the note was not at any time to become a valid and binding obligation of the maker; or was it a condition subsequent, the occurrence of which was to discharge and put an end to the otherwise valid and binding obligation of the note?
The first branch of the question must be answered in the negative; the last in the affirmative.
There is no conflict in the argument befdre us as to the law of the case. The parol evidence rule as applied to promissory and negotiable notes, which are obliga
But where the instrument is in fact delivered as a valid and binding obligation, for any moment of time, and it is sought by parol evidence to show an agreement by the obligee (even though the alleged agreement is
Such being the law of the case, it. is apparent from the reading of the evidence'that, the instant case falls within the parol evidence rule; for it appears.from the • evidence, without conflict therein, that the note involved in the instant case was, at the time of its deliv- • ery by the defendant maker to the payee thereof,, deliv- ■ ered as a valid and binding obligation, to remain such until its maturity, and even at and after maturity it was still to remain a valid and binding obligation of the maker to pay to the payee'or to his indorsee the amount of money stipulated in the note, unless the following subsequent events should happen, namely, unless the automobile, for which the note was given, was not sold for a price equal to the amount of the note, and the unsold automobile was returned to the payee of the note
■ We are, therefore, of opinion that the parol evidence in question sought to set up a condition subsequent to the passing of the property in the note to the payee, and, if given effect, would operate to discharge what was, by its unambiguous terms, for a time at least, a valid existing obligation to pay money, “in some other way,” different from that prescribed by such terms. The parol evidence was therefore erroneously admitted and the case must be reversed, and, under section 6365 of the Code, judgment will be entered for the plaintiff, for the amount of the note, less the credit set out in the petition for the attachment, with interest on such amount from the date of the note until paid, together with costs in this court and in the trial court.
2. The defendant, H. H. Witt, by cross-assignments of error, takes the position that the executor, who was also made a party defendant to the attachment proceeding and sought to be garnisheed, cannot be garnisheed and made to account to a creditor of a distributee of an estate, especially before there is an ascertainment of whether there are any prior liens upon the share of the estate belonging to such distributee; and, hence, contends that the attachment should be dismissed.
With respect to such contention, it is sufficient to say that there is no issue before us with regard to the attachment. Section 6404 of the Code provides that if, in an attachment proceeding, “the plaintiff’s claim be due at the hearing, and the court would otherwise have jurisdiction of an action against the defendant for the cause set forth in the petition, and said defendant has appeared generally, or been served with process, it shall
Reversed and final judgment entered for plaintiff.