52 Ind. App. 143 | Ind. Ct. App. | 1913
destroyed promissory note, shown to be in the words following:
“$500. Anderson, Ind., June 15, 1897.
Ten years after date I promise to pay to the order of Florence S. Myers, five hundred dollars ($500) value received, without any relief whatever from valuation or appraisement laws, with interest at 6% per annum from date, and attorneys’ fees. The drawers and endorsers severally waive presentment for payment, protest, notice of protest and non-payment of this note.
Wm. M. Croan.”
Appellant answered the complaint in five paragraphs. Trial by jury; verdict and judgment for appellee in the sum of $575. Errors assigned and relied on for reversal are (1) sustaining a demurrer to the third paragraph of answer, and (2) overruling appellant’s motion for a new trial.
In Conant v. National St. Bank (1889), 121 Ind. 323, 22 N. E. 250, the court said: “ It is true that the actual consideration of a contract may be shown by parol evidence, but it is not true that where the acts that a party agrees to perforin are expressly and specifically set forth, it may be shown by parol evidence that he agreed to do other things. "Where the writing states specifically the acts which the parties are to perform, no other acts can be proved by parol except in cases of fraud or mistake. The writing takes up and retains the whole and' every part of the contract, leaving nothing to be supplied by extrinsic evidence.” Citing cases. Again, in the same case, the court said: “The provisions of the contract are specific, and these specific provisions cannot be supplanted by oral statements. To permit parties to substitute oral statements. for written stipulations would render written instruments valueless, and leave to the uncertainty of human memory the terms of contracts. This would defeat the chief purpose of a written instrument, which is to furnish certain, reliable and permanent evidence of the contract. Where parties commit their contract to writing, by that writing they must stand, where there is neither fraud nor mistake. This must be true, or else the distinction between oral and written contracts will be utterly broken down.” See, also, Diven v. Johnson (1889), 117 Ind. 512, 515, 20 N. E. 428, 3 L. R. A. 308; Buckeye Mfg. Co. v. Woolley, etc., Works (1900), 26 Ind. App. 7, 13, 58 N. E. 1069; Pierse v. Bronnenberg (1907), 40 Ind. App. 662, 668, 81 N. E. 739, 82 N. E. 126.
In the case of Sherman v. Sherman (1852), 3 Ind. *337, on which appellant relies, a different state of facts is shown. That was a proceeding in equity to* foreclose a mortgage securing a note for $800, executed to a father by his two sons. The defense was that the father had conveyed-to said sons a certain tract of land as a gift, but to secure to himself and his wife a maintenance during their lives, and for no other purpose, the note and mortgage were executed; that the father and his wife were supported by defendants as long as the father lived, and his wife was still supported by defendants; that a short time before his death, the father
The court did not err in overruling appellant’s motion for a new trial.
The judgment is affirmed.
Note. — Reported in 100 N. E. 380. See, also, under (2) 17 Cyc. 567; (4) 8 Cyc. 222; (5) 31 Cyc. 79; (6) 3 Cyc. 384; (7) 3 Cyc. 383. As to parol evidence oí conditions in promissory notes, see 128 Am. St. 600. As to subsequent parol agreements to vary a writing, see 56 Am. St. 659.