Farmer v. Perry

70 Iowa 358 | Iowa | 1886

Roth rock:, J.

The notes and mortgage were given to secure the purchase money for certain real estate upon which i. pbomis-foSt maker: tum.ldeia’ there was a mill. It was part of the original contract that L. G. Perry, the mortgagor and purchaser of the property, should keep the mili insured for the benefit of the plaintiff, the mortgagee. It was ascertained that the premium for the, insurance of the mill was so high that an arrangement was made by which the appellant, Gill Perry, signed the notes, so that, on the face thereof, he appeared to be a maker; and, in consideration of his signature to the notes, the plaintiff waived the requirement that the mill should be insured. Appellant claims that he signed the notes long after they were executed by the principal maker, L. G. -Perry, and that plaintiff parted with nothing because of appellant’s signature. This averment of the answer is not supported by the proof, as the above statement of facts shows. The plaintiff waived the requirement that the property should be insured in consideration of appellant signing the notes; and it is hardly necessary to say that it is wholly immaterial whether this was at the time or after L. G. Perry signed the notes.

Appellant sought to prove upon the trial that, when he signed the notes, it was orally agreed that his liability was neoíis*“raí*" agreement. the same as the liability of an insurance company; that he was only to be liable in case property should be destroyed by fire. The evidence was inadmissible under the issues. The defendant could not vary the written contract by proof of a contemporaneous oral agreement that his liability was to be other than that expressed in the writing.

A question is made as to the right of the plaintiff to com.mence an action on the notes on the theory that appellant was a maker, and to recover upon an agreement different from that upon which the petition is founded. The ready answer to this is that the recovery was neither sought nor obtained upon any other theory than that appellant signed the notes as maker.

The judgment of the district court will be

AFFIRMED.