42 Minn. 93 | Minn. | 1889
November 10,1882, appellant executed and delivered to one E. W. Grosvenor, now deceased, and payable to his order, with interest, five certain promissory notes, due in three, six, eight, ten, and twelve months, respectively. Grosvenor died testate, February 12,1883, having in his lifetime negotiated the three notes first mentioned, and they were paid at maturity by appellant. The other notes, two in number, were negotiated by respondent as the duly-appointed and qualified executor of the last will and testament of said deceased, and were paid by appellant, December 15,1883. An order was duly made by the proper probate court, limiting the time within which claims against the estate of said deceased should be presented for examination and allowance, which time expired October 31, 1883. On April 6, 1885, the appellant presented a claim of $10-,464.03 against said estate, being the amount so paid by him on account of said notes, which claim he presented as a contingent one (Gen. St. 1878, c. 53, § 46,) and which was disallowed by the probate court. Upon appeal and trial the district court ordered judgment for the
On the trial of this case there was introduced in evidence by the appellant a written contract, executed and delivered by said Grosvenor to him simultaneously with the execution and delivery of the notes, whereby, in consideration of the sum of $10,000, evidenced by said notes, Grosvenor sold, assigned, and transferred to appellant an undivided one-twelfth share or interest in all lands “owned, or to be owned,” by the former and six other persons, by virtue of a written •contract theretofore made, of which a copy was attached. In the •contract the land — 640 acres, to be acquired for town-site purposes —was described, and the interest or share of each person therein ■specified. By its terms the other six were to perfect the title to one-half of the entire quantity, without expense to Grosvenor, while he, within four months after a survey thereof, was to procure a title to the other half. All expenses were to be borne by the parties to said •contract in proportion to their interests, except as stated above, and in the agreement delivered appellant it was stipulated that he should ■assume his share of the liability. In connection with this instrument appellant introduced evidence to establish the fact that the lands in question were actually surveyed in September, 1882, the official plats of said survey being filed on March 17, 1883; that the title thereto remained in the general government at the time of the trial; and that no effort had ever been made by the deceased in his lifetime, or by his legal representative, the respondent, to ac•quire or perfect a title thereto, — all of which the latter admitted.
It is unnecessary for us to consider what obligation the deceased •assumed by executing the aforesaid agreement, or whát future legal ■duty he thereby incurred; for the court below found, as a fact, that dhe notes in question were all executed and delivered as accommoda
But the appellant objected to the reception of this class of testimony, contending upon the trial, as he does upon appeal, that it tended to vary and contradict a written instrument in which there was no ambiguity, and about which there could be no misapprehension. There was no attempt here to encroach upon the very familiar rule invoked by counsel, as the rule is now construed, but simply .an effort to show by parol that the real consideration of the agreement was not therein expressed. It is now well settled in this country, save where the doctrine may in particular cases require a par
Judgment affirmed.