119 Wis. 573 | Wis. | 1903
When the trial court ruled that parol evidence might, be admitted to show that the absolute acknowledgment of the existence of a debt of $3,000, and the promise to pay the same, expressed by the note and mortgage in suit, were .not to be taken according to their words, but that said papers, absolute in form, were given and received merely as collateral security for some other liability, he ruled rightly. 2 Jones, Ev. § 507; Kent v. Agard, 24 Wis. 378; Andrews v. Jenkins, 39 Wis. 476, 481; Manufacturers’ Bank v. Rugee, 59 Wis. 221, 223, 18 N. W. 251; Lamson v. Moffat, 61 Wis. 153, 156, 21 N. W. 62; Gettelman v. Commercial U. A. Co. 97 Wis. 237, 241, 72 N. W. 627; Nauman v. Ullman, 102 Wis. 92, 78 N. W. 159; Brader v. Brader, 110 Wis. 423, 431, 85 N. W. 681; Bank of Utica v. Finch, 3 Barb. Ch. 293; Ferris v. Hard, 135 N. Y. 354, 32 N. E. 129; Kaphan v. Ryan, 16 S. C. 352; Davis v. Crookston W. P. & L. Co. 57 Minn. 402, 59 N. W. 482.
These authorities establish that an absolute written conveyance of property or an absolute written promise to pay ,a specified sum may be varied or'contradicted by parol to the extent of showing that each is a collateral security merely,
The attitude of the court is obviously untenable. Either the instruments sued on must be varied in their legal effect in accordance with the parol agreement in fact made by the parties, or they cannot be varied at all. They are either enforceable according to their terms for the full amount of $3,000, or their enforceability is limited to that less amount which the evidence shows the parties agreed to. The ruling was, in effect, that the parties might show that the note and mortgage were given as collateral, but could not show to what they were so collateral. It no more varied the writing to show that the papers were collateral to one undertaking than, to another. Any such proof, of course, had effect to vary and modify the writings, but in a permitted respect, as-
That result being inevitable, the next question presented for solution is upon the direction to be given the trial court. On the question of fact whether the agreement of the parties was that the note and mortgage in question should stand as continuing security for the balance of the merchandise account between plaintiffs and Daniel J. Lawrie, there is no finding. The court having rejected all evidence tending to sustain the affirmative, he thereupon limited his finding to the assertion that there was no evidence to support it. The evidence, however, was all received, though afterwards stricken out, and is all included in the bill of exceptions. The trial court has merely declined to pass upon its credibility, weight, and sufficiency to establish the fact testified to. In that situation, the duty of this court is declared in Brown v. Griswold, 109 Wis. 275, 280, 85 N. W. 363, as follows:
“If the evidence clearly supports the judgment, we should affirm it. . . . Failing this, if the question is in doubt and uncertain, so that a decision here might work injustice, we should reverse and remand for further trial. . . . Eut if an examination of the evidence discloses with reasonable certainty a preponderance in favor of the plaintiff’s contention, it is our duty to direct judgment in accordance therewith.”
An examination of the evidence on the subject discloses positive, direct, and intelligent testimony by the attorney
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment according to the prayer of the complaint.