Lipsett v. Hassard

158 Mich. 509 | Mich. | 1909

Grant, J.

(after stating the facts). 1. There is no ambiguity in the resolution under which this committee as trustees acted. Parol evidence of what was said by the stockholders at the meeting or the defendant’s understanding of how the proceeds were to be applied is inadmissible. 17 Cyc. p. 588; Ten Eyck v. Railroad Co., 74 Mich. 226 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Kalamazoo Novelty Manfg. Works v. Macalister, 40 Mich. 84; Oswald v. Minneapolis Times Co., 65 Minn. 249 (68 N. W. 15); Dennis v. Joslin Manfg. Co., 19 R. I. 666 (36 Atl. 129, 61 Am. St. Rep. 805); Peterborough Railroad v. Wood, 61 N. H. 418. This testimony was inadmissible.

2. Defendant bases his release upon his claim that he went to Mr. Fowle, the president of the bank,—

“ To get these notes collected as I did not want them hanging onto me, and he said: “Never mind these notes. You have nothing to do with them. They will be taken care of; ’ and I went back to Mead (the cashier), and I says: ‘You remember now that I do not want these hanging onto me.’ And he says: ‘ Mr. Fowle told ' you the notes were all right; ’ and so I went out with that.”

In fact, the defendant and other indorsers were joint makers. If the language amounted to a promise to release, there was no consideration for it. Promissory notes cannot thus be changed by parol. Bishop on Contracts (2d Ed.), § 770.

3. It was the legal duty of these trustees to apply the proceeds of this sale pro rata upon all the indebtedness secured by the mortgage. The resolution did not authorize them to pay unsecured indebtedness and such of the notes secured by the mortgage as they might see fit. The obligations of the parties were fixed by the mortgage, and all the notes secured thereby should have been treated alike. There was no proof of any waiver on the part of the defendant. It was therefore the duty of the circuit court to instruct the jury to ascertain the total amount of the debts thus secured, the total amount of receipts from the sales of property, to apply these receipts pro rata upon the secured debts, and to render a verdict for the plaintiffs for defendant’s share of the notes, provided there was not sufficient to pay them all.

Judgment reversed, and a new trial ordered.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.