77 N.W. 279 | N.D. | 1898
This action was tried to a jury. Defendant Moug had a verdict. Plaintiff made a motion for a new trial, which was overruled by the lower court, and he now appeals from that order, asking in this Court a review of the errors specified as the basis of that motion. Andrew H. Burke, out of whose financial reverses this action grows, is joined as co-defendant, but makes no answer or appearance. The facts are sufficiently shown by an abridgement of the pleadings. Plaintiff alleges that on October 8, 1896, Andrew H. Burke drew his check for $405.70 upon the Marine National Bank of Duluth, payable to defendant Moug; that said Moug thereafter, and for value, indorsed and transferred said check to the plaintiff; that the same was presented, and not paid, and was duly protested. The defendant Moug, answering, admits all of these allegations, except that portion stating that the transfer of the check and indorsement thereof was for value. On the contrary, he specific
Appellant predicates error upon the Court’s ruling in permitting defendant Moug to answer the following question over his objection: “Q. Did Mr. Dickinson state at that time the amount or about how much money he kept on hand belonging to Burke?” Also in sustaining defendant’s objection to this question, asked of plaintiff: “Q. Is it the habit of farmers to come to you and have their checks cashed?” In these rulings we find no error. The answer to the first question would tend to show the financial relation then existing between plaintiff and Burke, his principal, and furnish a strong reason for or against plaintiff’s alleged promise to protect defendant against loss from his shipments of grain. The last question, if answered in the negative, plainly could not avail plaintiff, and, if answered in the affirmative, would not militate in his favor, for a custom of cashing checks for farmers, even if it prevailed, would not affect or destroy the particular agreement upon which defendant relies relative to the check in question. An examination of the record satisfies us that the allegations of the answer have sustantial suport in the evidence. We must, however, in view of the objections hereafter noted, determine whether such facts constitute a defense. Plaintiff says not. To support this view, he relies upon the fact that the indorsement is a written contract, and then invokes the familiar rule that parol evidence is inadmissible to vary, contradict, or explain an agreement which has been reduced to writing, and cites numerous authorities in support thereof, including the decisions of this Court which have upheld the rule in all of its integrity. It should be observed, however, that these decisions go to the admissibility of parol testimony, and not to its effect when admitted. The record shows that all of the evidence in support of defendant’s answer came in without objection. Upon the question of its admissibility, therefore, the plaintiff is concluded. Nevertheless, had the objection on that ground been made at the proper time, it should not have been sustained. The defendant does not seek
Appellant, however, insists that even though the parol agreement was as alleged by the defendant, yet it was blotted out and superseded by the subsequent written indorsement. The wholesome doctrine thus urged, which is found embodied in the Revised Codes (section 3888), is not applicable to the facts as they exist in this case. There is no controversy as to the contract of indorsement. It is complete in itself, and admitted. The dispute is as to the alleged agreement preceding the shipment. It would, indeed, be a gross perversion of the doctrine relied upon to make it a means of destroying their prior contract, which the evidence shows was performed fully on the part of the defendant, and was entirely separate and distinct from the subsequent indorsement. The jury evidently found the defendant’s version of the transaction to be true, namely, that plaintiff agreed, as an inducement for defendant to ship the grain, that he would hold him harmless, and that he would take Burke’s checks, assuming all liability himself; further, that the