53 Wis. 465 | Wis. | 1881
It is a well settled rule of this court, that “ all contemporaneous agreements between the same parties, and in' relation to the same subject matter, are to be taken together and construed as one instrument, for the purpose of determining the character of the transaction and the intention of the makers.” Norton v. Kearney, 10 Wis., 448. Thus it has been held that “a chattel mortgage and a written'agreement to govern the same subject matter between the parties, executed contemporaneously, must be treated as one contract.” Blakeslee v. Rossman, 43 Wis., 116.
This being |he law, it is very evident that the deed from George to Henry, and the note and mortgage from Henry back to George, and the deed from Henry to the company, must “ be taken together and construed as one instrument for the purpose of determining the character of the transaction and the intention of the makers.” Thus taken, they seem to cover the whole transaction, and leave no room for doubt, uncertainty or ambiguity with respect to it. By his deed,
Thus the oral agreement sought to be established is squarely in conflict with the written agreement, which is admitted. The note representing the debt “ is the principal thing,” and the mortgage is collateral and incident to it. Matthews v. Wallwyn, 4 Ves. Jr., 129; Croft v. Bunster, 9 Wis., 510; Catlin v. Henton, 9 Wis., 476. Thus we are called upon to allow parol evidence to destroy the effect of, and wipe from the case, the written agreement of the defendant contained in the note, which “is the principal thing,” and leave the mortgage, which is merely collateral and incident to the note, as though that were ■ all that George ever intended to take, and all that Henry and Long, acting for the coal company, ever
In StraChan v. Muxlow, 24 Wis., 21, it was held that “where the purchaser from A. gave his promissory note, payable to B. or his order, an alleged contemporaneous agreement that he should be at liberty to pay the note before maturity (stopping the interest), or to pay it to A. when due, held to contradict the note.” See Lowber v. Connit, 36 Wis., 176.
Counsel seek to bring the defendant within the rule applicable to an accommodation maker of a note: “An accommodation bill is a bill to which the accommodating party, be he acceptor, drawer or indorser, has put his name, without consideration, for the purpose of benefiting or accommodating some other party, who desires to raise money on it and is to provide for the bill when due.” Byles on Bills, 128 (208); Bigelow on Bills & Notes, 670. Daniell gives the following definition: “ An accommodation bill or note is one to which the accommodating party puts his name, without consideration, for the purpose of accommodating some other party who is to use it and is expected to pay it.” 1 Daniell on Neg. Inst., § 189.
Certainly the defendant is not an accommodation maker within either of these definitions. For whose accommodation wras the note given? Was it for the accommodation of George? lie did not wish to raise money on the note. An accommodation maker receives nothing as consideration, and the party accommodated parts with nothing. Here, George not only parted with the entire title to the land, but vested it absolutely in the defendant, who gave back to George the note and mortgage as representing the amount of the consideration which George had not received for his deed, but which was thereby secured to be paid to him.
In both the note and mortgage the defendant acknowledges the receipt of the consideration therefor from George, and the
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.