Franklin v. Browning, 117 F. 226

Franklin v. Browning

117 F. 226 | 8th Cir. | 1902

LOCHREN, District Judge,

after stating the case as above, delivered the opinion of the court.

That the defendant indorsed each of the notes “Pay to the order of P. G. Browning, demand and notice waived, G. W. Franklin,” is admitted by the answer. These indorsements are contracts in writing, made in the transfer of the notes for value. The obligation assumed by the indorser by such indorsement is as certain and free from doubt or ambiguity as if fully set forth in express words, i Dan. Neg. Inst. § 717. As the indorsement waives demand and notice, the agreement of the indorser is that he will pay the notes to the indorsee or holder if they are not paid by the maker at maturity. The defense pleaded seeks to change and make different this obligation of defendant under his written indorsement by alleging a contemporaneous “understanding' and agreement,” to the effect that the defendant should not be liable upon his indorsements unless plaintiff had diligently protected *228an alleged lien upon cattle, and neglected no means of collecting the notes through such lien. The words “understanding and agreement” import an oral agreement, and it is not stated to have been in writing. But the contract of indorsement, like every other written contract, must be held to contain all the terms of the final agreement between the parties relative to the obligation of the indorser. “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 contradict, or add to, or subtract from, the absolute terms of the written contract. 2 Pars. Bills & N. 501; Specht v. Howard, 16 Wall. 564, 21 L. Ed. 348;” Forsythe v. Kimball, 91 U. S. 291, 23 L. Ed. 352. Merely as holder of the notes so indorsed, no duty was cast upon the plaintiff to look after or follow the cattle, even if the terms of the notes gave a lien upon any cattle. No cattle were delivered to or put in the care or charge of plaintiff. After the notes became due and remained unpaid, the defendant was absolutely liable for their payment. He could not require the holder to pursue the maker or any security. His right was to pay the notes to the holder, and assume the control and collection of them himself. Ross v. Jones, 22 Wall. 576, 22 L. Ed. 730, and cases cited. But the language of the notes is ineffectual to give any lien upon any cattle. No cattle are described so as to be fairly capable of identification. The answer states that the cattle wintered by defendant were about 200, and that Skinner had about 2,000 of the same brand, and claims that the lien covered them all, and was not confined to those wintered by defendant, and which alone are mentioned in the note. It is needless to consider this claim. The note gives no authority to take possession of or sell any cattle. It appears to be an agreement that Skinner will regard those cattle as the property from the sale of which he will pay the notes, and will make such payment from the first shipment; which implies that he is to continue to have full dominion over the cattle, and unrestrained power to dispose of the same. It is a promise to pay the notes out of the proceeds of the sale of the cattle. This creates no lien. Cook v. Black, 54 Iowa, 693, 7 N. W. 121.

The judgment is affirmed.

4. See Bills and Notes, vol. 7, Cent. Dig.' § 691.