68 N.Y.S. 464 | N.Y. App. Div. | 1901
This action was brought upon a promissory note made by the defendant to the Fred Hower Brewing Company. The note is dated August 24, 1894, payable one day after date, and is for the sum of $1,000 and interest. It is averred in the complaint that this note was sold, assigned, and transferred by the Fred Hower Brewing Company to the plaintiff, and that, in an action in the supreme court in which this plaintiff was plaintiff and the said brewing company and others were defendants, a judgment was duly made and entered by which it was adjudged that said note, among others, be sold at public auction, and that the same was sold pursuant thereto, and the plaintiff became the purchaser thereof, and the same was duly transferred to the plaintiff, and he became the owner and holder thereof. The defendant sets up three separate defenses to the alleged cause of action. He avers that the brewing company placed in defendant’s saloon certain saloon fixtures, which were valued at $1,000, and that he executed a chattel mortgage upon the fixtures, together with a note or bond for that amount, upon the agreement that if at any time he should deliver up the fixtures to the brewing company the note and chattel mortgage should be canceled and discharged; that he subsequently did notify the brewing company to take away their fixtures, and they refused to do so, and that he was compelled to and did store them on behalf of the said company; that at or about the date of the note an agreement was entered into between the defendant and the brewing company to the effect that if the defendant should sell the beer of the company .for the period of two years, and pay therefor, the said chattel mortgage and the note or bond given by the defendant should, in consideration thereof, be canceled and discharged, and this defendant should become the absolute owner of the fixtures; and that the defendant did sell such beer, and paid therefor, for a period exceeding two years, of which facts the plaintiff had notice at the time he purchased the note in question. By the third defense he avers the execution of the mortgage, and the provisions for sale in case of default in payment; that neither the brewing company, nor its successors or assigns, have taken any proceedings to sell the mortgaged property pursuant thereto; and that a sale thereunder would have realized more than the amount secured to be paid thereby.
It is difficult to tell from the record before us at just what time this note was transferred to the plaintiff, but it is quite clearly established by the testimony that it was after its maturity. The counsel for plaintiff, in his points, attempts to throw some doubt upon this question, but plaintiff’s own witnesses establish the fact
The" instrument printed in the record as defendant’s Exhibit A, whether introduced by the plaintiff or defendant, could have no relevancy to the issues. It is dated in May, 1891, more than three years-
No error was committed by the court in the rulings upon the trial presented by the plaintiff’s exceptions, and we can find nothing in the record calling for a reversal of the judgment. .
The judgment and order should be affirmed, with costs to the respondent.
VAN BRUNT, P. J., and RUM-SEY and O’BRIEN, JJ., concur.
I do not concur in the affirmance of this judg-. ment. The conversation between the defendant and the brewing company testified to was in April, 1894. The note in question, whereby the defendant agreed to pay $1,000, was made the'following August, and at the time the note was given a contract was made between the parties by which the defendant agreed to take the beer for one year. There is no evidence that at the time the note was given, or at any subsequent period, there was any modification of the agreement to pay $1,000, or that this conversation in April had any relation to this particular promissory note. The instruments executed in August speak for themselves, and certainly the defendant was not justified in relying upon a conversation previous to April as a defense to his promise contained in the note in suit to pay $1,000. By the instrument executed in August, 1894, the parties must have intended to express the whole agreement between them. That agreement was that this defendant would pay to the brewing company the sum of $1,000 one day after date, and would buy beer from the brewing company for one year; and the general principle is that where a contract has been reduced to writing, the terms of which are clear and unequivocal, the instrument itself is the highest evidence of the nature of the agreement between the parties, and that parol evidence of a different oral understanding alleged to have been had before or contemporaneously with its execution is inadmissible to vary, qualify, or contradict its terms. “The instrument itself is the best evidence of the drawer’s obligation, and parol evidence of an agreement made contemporaneously with