Dennis v. Jackson, No. 8644

No. 8644 | Minn. | May 15, 1894

Canty, J.

This is an action brought on a promissory note made by the defendant Jackson to one Humphrey, and on the back of which it is alleged the defendant Dunsmoor wrote his name, before delivery to Humphrey, for the purpose of giving it credit. The complaint further alleges that before maturity Humphrey indorsed and transferred the note to plaintiff.

The answer of defendant Dunsmoor admits the making of the note, and that he wrote his name on the back of it before delivery to Humphrey, but denies that it was for the purpose of giving it credit; and alleges as a defense that this is a renewal of a prior note, made by a third party to defendant Dunsmoor, which was secured by mortgage, which note he (Dunsmoor) sold, indorsed, and delivered to Humphrey, and also assigned to him the mortgage; that this note and mortgage came due on December 20, 1889; that prior to that time, on December 2, 1889, Jackson, who had in the meantime become the owner of the mortgaged real estate, made the note in suit to Humphrey, and secured it by a new mortgage; that before the delivery of this note to Humphrey defendant Dunsmoor indorsed it on the back of it, at the request of Humphrey to make the same indorsement on the back of the new note that he had on the old one; and at the time the note was indorsed to plaintiff he had knowledge of this fact. This answer, on motion of plaintiff, was ordered to be stricken out as sham and frivolous, and from this order Duns-moor appeals.

We are of the opinion that the order appealed from should be affirmed. Appellant admits that he wrote his name on the back of this note before delivery. The legal effect of this was to constitute him an absolute maker or promisor, and an absolute surety on the note, and not a conditional one. He cannot vary the legal effect of his written contract by parol evidence. This applies to a blank indorsement on a note as well as it does to a contract written out in full. A defendant who signed his name on the back of a note before delivery cannot show that there was a parol agreement made at the same time that he was to be charged as indorser, and not as maker. Peckham v. Gilman, 7 Minn. 446" court="Minn." date_filed="1862-07-15" href="https://app.midpage.ai/document/peckham-v-m-d-gilman--co-6641274?utm_source=webapp" opinion_id="6641274">7 Minn. 446 (Gil. 355.) It is always competent to prove by parol the time of delivery of a written instrument, even though such proof may change the legal effect of the instrument. Thus it is competent to prove that a contract dated on Sunday was in fact made and delivered on a week day. State v. Young, 23 Minn. 551" court="Minn." date_filed="1877-05-29" href="https://app.midpage.ai/document/state-v-young-7963319?utm_source=webapp" opinion_id="7963319">23 Minn. 551; Schwab v. Rigby, 38 Minn. 395" court="Minn." date_filed="1888-05-14" href="https://app.midpage.ai/document/schwab-v-rigby-7965625?utm_source=webapp" opinion_id="7965625">38 Minn. 395, (38 N. W. 101.) The date of delivery is not a part of the written instrument, but an extrinsic fact. When the time of delivery is ascertained, and the instrument so delivered identified, then parol evidence cannot go further, and add oral words to the written words identified. If, in a case like the present, words are to be added, the law alone must add them. The defendant’s answer shows that his contract as to the second note was different from that as to the first note, and also that he signed this second note to give it credit, though in form he denies this.

No point is made as to whether or not this answer should have been assailed by demurrer instead of a motion to strike it out, and no point is made as to whether or not this is an appealable order, and we are not to be understood as deciding either point. Order affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N.W. 198" court="Minn." date_filed="1894-05-15" href="https://app.midpage.ai/document/dennis-v-jackson-7968391?utm_source=webapp" opinion_id="7968391">59 N. W. 198.)