162 Wis. 558 | Wis. | 1916
Plaintiff objected to any evidence of tbe facts found by tbe special verdict, on tbe ground tbat it was incompetent, irrelevant, and immaterial and in conflict with tbe contract; tbat it was not in writing; and tbat it tended to contradict tbe written contract of tbe parties. Tbe objection made at tbe beginning of tbe trial was renewed throughout its course and tbe question preserved by appropriate motions and exceptions, and tbe sole question to be determined, on this appeal is whether or not tbe evidence of tbe oral agreement made between tbe parties at tbe time of tbe making and delivery of tbe note was properly received by tbe trial court.
Sec. 1675 — 16, Stats., reads as follows:'
“Every contract on a negotiable instrument is incomplete and revocable until delivery of tbe instrument for tbe pur*561 pose of giving effect thereto. As between immediate parties, and as' regards a remote party other than a holder in due course, the delivery, in order .to be effectual, must be-made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be; and in such case the delivery may he shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof hy all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery hy him is presumed until the contrary is proved.”
In the case of Paulson v. Boyd, 137 Wis. 241, 118 N. W. 841, approving Hodge v. Smith, 130 Wis. 326, 110 N. W. 192, the facts in the Paulson Case being in many respects similar to those in the instant case, this court stated the law in the following language:
“It is familiar law, notwithstanding some conflict in the authorities, that a person may manually deliver an instrument, though it be in the form of commercial paper, to another, on its face containing a binding obligation in prcespnti of such person to such other, with a contemporaneous verbal agreement that it shall not take effect until the happening of some specified event, and that the paper, as between the parties, will have no validity as a binding contract till the condition shall have been satisfied; and that proof of such condition does not violate the rule that a written instrument cannot be varied by a contemporaneous parol agreement; that such evidence only goes to show that the instrument never had vitality as a contract.”
The trial court was clearly right in admitting the evidence concerning the making of the contemporaneous' oral contract and within the rule above set forth. The evidence admitted by the trial court did not tend to vary or contradict the written contract, but tended to establish the fact that the note was delivered conditionally and for a special purpose only.
The words “being money loaned me October 21, 1912,”
For a case distinguishing between recitals and contractual elements see Conant v. Estate of Kimball, 95 Wis. 550, 70 N. W. 74; that a recital is not a part of a deed, Clark v. Post, 113 N. Y. 17, 25, 20 N. E. 573; tbat a statement of tbe consideration for a contract may be explained or contradicted, see Crowe v. Colbeth, 63 Wis. 643, 24 N. W. 478; Halvorsen v. Halvorsen, 120 Wis. 52, 97 N. W. 494; Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054; Kipp v. Laun, 146 Wis. 591, 131 N. W. 418; 4 Wigmore, Evidence, § 2433. Tbe evidence was properly received and tbe judgment should be affirmed.
By the Oourt. — Judgment affirmed.
