89 Cal. 186 | Cal. | 1891
Lead Opinion
— Action for the balance alleged to be due upon a promissory note executed by defendant's to plaintiff on April 25, 1885, for the sum of two thousand dollars.
The answer alleges that in December, 1884, the defendant Thomas F. Langan purchased from plaintiff an undivided one-fourth interest of all the copartnership property belonging to a firm of which plaintiff was a member, for the sum of three thousand dollars, and in payment thereof then executed to plaintiff his promissory note for said sum; that he afterwards paid one thousand dollars thereon, and then took up said note, and he and the other defendant, his wife, gave to plaintiff the note mentioned in the complaint for the balance due on account of said purchase; that is, as we construe the answer, for the balance due upon the promissory note executed in December, 1884. The answer then, in a separate defense, alleges that a part of the copartnership property purchased by defendant consisted of two land-warrants, and that said warrants were a part of the consideration for which the note referred to in the complaint was given; that plaintiff agreed to locate them upon lands, and convey said lands so located thereunder, to defendant T. F. Langan; that plaintiff has located the
1. It is apparent from the answer of defendants, and the court so finds, as we read findings Nos. 4, 5, and 6, that the note mentioned in the complaint was given in consideration of the balance due upon the note for three thousand dollars, executed in December, 1884. It there, fore became a material question upon the trial to determine what was the consideration for this original note.
Upon the trial, it appeared that this note of December, 1884, had a-contract attached to it, written on the same sheet of paper, and was executed in duplicate, each of the parties retaining a copy. This note and agreement is in the=>following words:—*193 hereof, upon two thousand dollars of said note, and thereupon J. A. Langan agrees to give a bill of sale to T. F. Langan for one thousand sheep, the property of J. A. Langan, which are now in the possession of T. F. Langan, and a deed to all his (J. A. Langan’s) rights in the homestead of Honora Langan, and one fourth interest in the Hezekiah M. Martin tract of land, and the half-interest in two express-wagons, and all the improvements on said ranch, the title of said sheep and ranch to remain as they are at present until the performance of said agreement, to wit, the payment of the foregoing note according to the tenor thereof, or the security of the payment as herein provided by mortgage, etc.
*192 “ Merced Co., December 3, 1884.
“ Sixty days after date, I promise to pay J. A. Langan the sum of three thousand ($3,000) dollars, gold coin of United States, for value received.
“ Thos. F. Langan.”
“ It is further agreed that if at the end of sixty days T. F. Langan gives collateral security to J. A. Langan, and pays one per cent per month for the payment of two thousand dollars, by a mortgage upon the homestead of Honora Langan and Hezekiah M. Martin tracts of land, and otherwise secures the payment of the same, then J. A. Langan agrees to take said security, and grant further' time, not to exceed two years from the date
*193 “ This agreement has nothing to do with any former agreements made by said parties, but such other agreements are to be settled according to the tenor of themselves; namely, the three hundred dollars for rent of sheep and the one thousand dollars balance due on sheep sold by J. A. Langan to T. F. Laugan last year.
“ J. A. Langan.
“ Thos. F. Langan.
“ Witness: W. J. Stockton.”
This writing is to be construed as an agreement on the part of the plaintiff, J. A. Langan, to sell to the defendant T. F. Langan the property therein mentioned for the price and upon the terms therein stated; and this agreement to sell said mentioned property, and compliance with it, is to be deemed full consideration for the note therein set out, precisely as if the agreement had so recited in words, and therefore the court erred in admitting oral evidence to show that the land warrants, referred to in the evidence, were a part of the consideration of this note. This ruling of the court is not sustained by the rule which permits parol evidence of a consideration different from that named in the contract or deed, or the existence of a separate oral agreement constituting a condition precedent to the taking
“The rule which allows the maker of a promissory note to show, in an action upon it, a failure or partial failure of consideration is not sufficiently broad to cover this case. Here we have written instruments which set-out particularly the consideration of the notes in suit; to wit, the assignment of notes and mortgages, and of a contract to convey lands and to sell timber upon other lands. The right to prove a failure of consideration would admit evidence of the failure of any consideration expressed in the writings, as that the title to any of the property thus sold or assigned had failed, but does not go to the exent of allowing proof of an additional com sideration not expressed in the writings, and a failure thereof. To hold otherwise would be to destroy the rule which prohibits parol evidence to contradict or vary written instruments. The instrument signed by plaintiff and accepted by the defendant, and the notes signed by the latter and delivered to the former, constitute an agreement in writing. The terms of the agreement are clearly expressed, and the writings contain no clause from which it may be inferred that the parties did not intend to incorporate in them the contract just as it was made, and the whole of it.”
2. In the bill of exceptions the plaintiff specifies that the decision of the court was against law, because certain findings are contradictory, and this is one of the grounds upon which a new trial was asked. The motion should have been granted, for this reason. Findings 7 and 11, which are necessary to support the judgment in favor of defendants, are in conflict with findings 4, 5, and 6, as we construe them, those first named being
3. The appeal from the judgment in this case was taken more than one year after the date of its entry. The parties entered into a stipulation, thus extending the time for appealing from the judgment, and the respondent has not asked that the appeal be dismissed. The court, however, is not bound by this stipulation.
The appeal from the judgment is dismissed. Order denying plaintiff's motion for a new trial reversed.
Concurrence Opinion
— I concur in the order dismissing the appeal from the judgment. I also concur in the order reversing the order denying the motion for a new trial, on the ground that the findings are uncertain and conflicting.
The contract attached to the note does not, in express terms, declare that the considerations therein named are all (lie considerations for the three-thousand-dollar note, and I think that, under the decision of this court in Billings v. Everett, 52 Cal. 661, the court did not err in its ruling. The matter referred to was expressly alleged as
Rehearing denied.
Concurrence Opinion
Dissenting Opinion
dissent. I see no contradiction in the findings, and no error committed in the trial of action. I think the order should be affirmed.
