60 Kan. 729 | Kan. | 1899
The opinion of the court was delivered by
This was an action brought by the Dominion National Bank of Bristol, Virginia, against E. C. Manning, to recover the amount claimed to be due upon two promissory notes — one for $2235, the other for $1500, with interest on both — and to foreclose a mortgage executed to the said E. C. Manning by one E. F. Manning, and which the former had assigned to the plaintiff as collateral security. E. C. Manning denied liability on both notes except as to $230 of the larger one. As to the remainder of that one, he claimed that it was a renewal of former notes which he had been induced to execute to the bank without consideration and under an agreement that notwithstanding their terms he should not be held to their payment. His claim in substance was that the plaintiff bank was desirous that he appear to be one of its stockholders and act as one of its directors ; that the president of the bank asked him to take stock in it, agreeing to accept his notes for the stock, and agreeing that the dividends on the stock should be applied to the payment of the interest upon the notes ; that the transaction should be merely colorable ; that the stock should never be in reality his, and that neither principal nor interest of the notes should ever be demanded of him.' To this he says he assented after some persuasion. He executed his notes, was entered as a stockholder upon the books
The questions raised under the answer as to the negligence of the bank in failing to collect the securities collateral to the note of $1500 are wholly questions of fact. As to them the findings of the jury are conclusive upon us, and they need not be further noticed.
The claim of error in the reception of evidence contradicting the terms of the other note, and the instructions of the court countenancing the defense of non-liability upon it, are well taken. The rule is unquestioned that parol evidence is not admissible ’to control, add to, vary or contradict the language of a promissory note or other valid written instrument when sued upon by the payee or obligee named ku it. (Whart. Ev., § 1058; Underhill, Ev., §§ 205, 206; Milich v. Armour, ante, p. 229, 56 Pac. 1.)
One or two other claims of error are made,, but a review of them is not necessary. The judgment of the court below is reversed, and a new trial ordered.