Dickson v. Harris

Sep 22, 1883
Reporters:
Before:
Day
Day, J“.

i. pgomispa?oi tofcyaiy tract! ° con I. The execution of the note, and the receipt by the defendant of $200 from the plaintiff, at the time the note was executed, arе admitted. The plaintiff’s son is the defendant’s son-in-law. The defendant’s counsel produced the defendant as a witness, and pro*729posеd to prove by Mm, that tbe plaintiff, having been informed by the defendant of the plaintiff’s son’s necessities, gave the defendant, at the time оf the execution of the note in suit, $200, for which the note was executed, and requested the defendant to apply that amount of mоney for the plaintiff, in discharge of a debt against the plaintiff’s son, in Iowa; that witness took the money and brought it to Iowa, and appliеd it as requested in payment of a judgment against the plaintiff’s son; and that the note was given upon this consideration alone, and was not intended, between the parties, to operate as a note, but merely as a memorandum of the amount of money reciеved, and that it was agreed at the time the note was made that the payment of the money in the way agreed upon should be a satisfaction of the note. This proffered testimony was rejected. It is to be observed that the defendant does not allege in his answеr, nor propose to show, that the note never had any legal existence, by reason of fraud, accident, or mistake, or for want of due execution and delivery, or for any ‍​‌‌‌‌‌​‌​‌​‌​‌​​‌​​‌‌‌‌‌​‌​‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​​‍illegality in the subject-matter. The defendant, whilst admitting that he executed the note with full knowlеdge of its terms, and of every fact connected with it$ seeks, by parol contemporaneous testimony, to transform the note into a mere memorandum or receipt. That he cannot do this seems to us almost too plain for discussion. In the 2d volume of Parsons оn Notes and Bills, page. 501, it is said: “ If the defendant endeavors to prove an oral bargain between himself and the plaintiff, which differs in its terms from the written note, it will then be remembered that it is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsing of a bill or note, cannot be permitted to vary, qualify, or contrаdict, to add to, or subtract from, the absolute terms of the written contract. The exceptions to this rule are cases of fraud, illegality, or want of consideration.” On page 507, of the same work, it is said: “ Parol evidence of a contemporaneous agreement that a note in the usual form was intended to *730stand in place of a receipt, and that the sum for which it was given was intended as рayment of a prior debt of the defendant’s father, is not admissible.” On page 525, of the same work, is this language: “An instrument which has the form of a рromissory note, but was never executed or received as such, may be shown by parol to represent a different bargain from thе one its terms import. But in a note in the usual form, and regularly delivered, parol evidence cannot properly be admitted to рrove any special purpose directly repugnant to the terms of the note.” In harmony with this rule, and illustrative of it, see the following сases in this court: Atherton v. Dearmond, 33 Iowa, 353; Atkinson v. Blair, 38 Id., 156; Barhydt v. Bonney, 55 Iowa, 717. See, also, Daniel on Negotiable Instruments, ‍​‌‌‌‌‌​‌​‌​‌​‌​​‌​​‌‌‌‌‌​‌​‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​​‍section 80. The case of Billings v. Billings, 10 Cushing, 178, is directly in point and holds that parol evidence is not admissible to show that a promissory note in the usual form was intended as a receipt. See, also, Underwood v. Simonds, 12 Met., 275; Sylvester v. Staple, 44 Me., 496; Cooper v. Tappan, 4 Wis., 362 (369); Hightower v. Ivey, 2 Porter (Ala.), 308; Hupuy v. Gray, Minor, 357. The case of Beal v. Beal, 20 Ind., 163, relied upon by aj>pellant, is, we think, oрposed to the weight of authority, ‍​‌‌‌‌‌​‌​‌​‌​‌​​‌​​‌‌‌‌‌​‌​‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​​‍and unsustainable upon principle. The case of Grierson v. Mason, 60 N. Y., 394, is distinguishable from the case at bar. ‘In that case it was held competent to prove that a writing drawn by the defendant, and executed by the plaintiff’s assignor, was delivered to a third рarty to enable the defendant to obtain advances on goods, and was not intended as a contract between the pаrties thereto, nor as modifying a parol agreement before that time entered into. The case falls short of holding that an instrument, on its face a promissory note, duly executed and delivered, may be shown by parol evidence to be a mere receiрt, and not to constitute, as its terms import, an agreement to pay money. The following pertinent language is found in 2 Parsons’ Notes and Bills, page 502: “ The obvious inference must be, that all that the *731parties did in fact agree to was put into dne written form; and that all collaterals and appendages, concerning which there was merely conversation, was precisely what they could not agree upon. ‍​‌‌‌‌‌​‌​‌​‌​‌​​‌​​‌‌‌‌‌​‌​‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​​‍This of course is not always the true inference, but it is of necessity the legal inference; and the rule that .an absolute notе cannot be varied by evidence is held in equity as in law.”

If the defendant in this case simply intended to acknowledge, the receipt оf $200 to be delivered to plaintiff’s son, as is claimed, it is incredible that he should, instead of a receipt, have executed his promissory note payable in twelve mouths, with interest at eight per cent. -It is apparant that, to admit such evidence as was offered in this case, would render written instruments of little value, and open wide the door for fraud and perjury.

2. —:-: want of conisideration. II. It is said, however, that the proffered testimоny tended to show a want of consideration for the note. The defendant ‍​‌‌‌‌‌​‌​‌​‌​‌​​‌​​‌‌‌‌‌​‌​‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​​‍admits that he received $200 from the plaintiff , , , , , , when he executed the note, lhe fact or the re-

ceipt of this money, in connection with the contemporaneous execution of thе note, raises a legal presumption that the $200 constituted the consideration of the note. To rebut this presumption, the defendаnt claims that he may prove a contemporaneous agreement, showing the transaction to be altogether different frоm what the law imports, and which would in fact transform the note into a mere memorandum of a different agreement. This cannot be done under pretext of showing a want of consideration. The cases of Atherton v. Dearmond and Barhydt v. Bonney, bear directly upon, and are decisive of, this questiоn.

3__._. offset. III. It is claimed that the defendant, as an offset to the note, should have been allowed to prove the payment of $200 to the usе of the plaintiff’s son, at the plaintiff’s request. But for authority to make this payment the defendant comes back to the parol agreement made at .the time of the execution of the note. It is not claimed that *732any request was made of, or authority was given to, the defendant to pay $200 to the plaintiff’s son, other than what occurred when the note was executed. It is clear that to admit such proof would altogether defeat the purposes of the note. ■

Aeeirmed.