126 Iowa 121 | Iowa | 1904
As the sufficiency of the answer is alone involved, we here state the substance thereof: Defendants admit their signatures to the note, but deny the delivery thereof to the payee. They aver: That T. G. Boyd, the payee of the note, conveyed to them two lots in the town of Bockwell pursuant to an agreement, which was partly in writing and partly in print, whereby the defendants, in consideration of the conveyance, promised to pay said Boyd during his lifetime interest at the rate of six per cent, per annum upon $700. That, after this agreement and conveyance had been made, Boyd requested defendants- to deposit with him some instrument in writing, in the form of a note or otherwise, to be held as evidence of their obligation to pay the interest, and as security for the payment thereof; the said instrument to have no other effect beyond its efficacy as evidence of and as security for the defendants’ obligation to pay interest as aforesaid; the said note to remain in Boyd’s possession until his death, and then to be surrendered to defendants. That, after making this agreement, Boyd wrote the defendants as follows: “ As I said before, all I want is the interest of $700.00. I enclose a note for that amount. If it is satisfactory please sign the note; together with Mrs. Lakins, and send it to me and I will send the deed. I am unusually well and will be up some time for a good visit. Don’t know whether I will go East. Tours truly, E. G. Boyd.” Defendants allege that the note was never delivered to Boyd as such, or as his property, and that it was simply to be held by him during his lifetime as evidence of and as security for defendants’ obligation to pay interest, and that upon Boyd’s death defendants became entitled-to the possession of the note. They further alleged that they paid all interest down to the time of Boyd’s death, and that plaintiff herein had full knowledge and notice of the agreement between the original parties at the time it ac
The demurrer was based on the grounds (1) that the answer shows full delivery of the note; (2) that the agreements pleaded by defendants were merged in the note, and, resting in parol, cannot be proved to contradict or vary the terms of the written instrument; and (3) that, as the note recites its own consideration, parol evidence is not admissible to change or vary the same. The case turns wholly on whether the facts pleaded constitute any defense, in law, to the interest claim on the note.
does n0^ aPPty simP^© Contracts. McCormick Co. v. Morlan, 121 Iowa, 451. The cases W0 kave clearly distinguish those which have been called to our attention by appellee’s counsel, and we need not take time to point out the differences. Gifford v. Fox, 2 Neb. 30 (unofficial) (95 N. W. Rep. 1066), supports our conclusions in this case. Pierpont v. Longden, 46 Conn. 499, relied upon by appellee, differs from this case, in that there the delivery was unconditional, and the parol agreement was that the note should be void at the payee’s death. Here the- delivery was only as security for the main promise, which was in parol, and tire note was never delivered • otherwise than as security for the fulfillment of this promise. Moreover, the letter which is set out in the answer, which should, of course, be construed with the other writings, as it was a part of the transaction, shows that the defendants’ contention is correct. At least, there was enough in it to take the case to a jury. It also shows that the entire agreement was not embodied in the writing, and resort to parol
For each and all of these reasons, it appears that the trial court was in error in sustaining the' demurrer, and the judgment must be, and it is, therefore, reversed.