102 N.W. 163 | N.D. | 1904
Action upon a promissory note. On the back of the note was written the following unsigned memorandum, viz. : “It is hereby stipulated if this note is not paid in full before the death of the owner; then the makers of this note shall first pay all funeral expenses, the balance to be used for a monument and otherwise caring for the lot, which shall discharge the full indebtedness of this note.” "The executor of the estate of Donald McFadgen, the payee, brings the action on the note, and pleads the note as the cause of action, and entirely disregards the memorandum as a part of the note. Defendants answer, and plead the memorandum written on the note as a defense, and allege that the note has been entirely paid by them by complying with the terms of the memorandum. The trial court refused to admit the memorandum in evidence, and refused to admit any evidence in regard to it, and directed a verdict for the plaintiff for the 'full amount due on the note as shown by its face. A motion for a new trial was made, based upon a settled statement of the case, and the motion was denied'. The appeal is from the judgment entered on the verdict. The ground urged fbr a reversal of the judgment is that full effect should have been given to the memorandum written on the back of the note. It is claimed that this memorandum should be considered as a part of the note, and, if so considered, a valid contract was entered into between the parties, under which no recovery can be had on the contract unless the makers have failed to expend the proceeds of the note, as directed by the payee, in case of his death before the note was paid. Conceding, for the purposes of this case only, that the memorandum is to be considered as incorporated into the terms of the note, and was written there when the note was signed, we are unable to reach the conclusion that the memorandum can be enforced under the circumstances of this case. The note was payable on demand. It was the property of the payee when he died
The judgment is affirmed.