277 F. 417 | 8th Cir. | 1921
Defendant in error brought suit in the court below upon two promissory notes executed by plaintiff in error. The defendant. plaintiff in error, in his answer admitted the execution of the notes. As a defense he alleged, in substance, that in July, 1913, one
As a further defense the defendant alleged, in substance, that in November, 1914, the said Smith above named, as the agent of the plaintiff and authorized by the plaintiff in that behalf, entered into an oral agreement with him at the city of Beatrice, in Nebraska, by the terms of which it was agreed that if he, the defendant, would assign to plaintiff the certificates theretofore issued in the name of the defendant, but never delivered to him, and which represented his subscription to the capital stock of the plaintiff corporation, plaintiff would cancel and deliver up to him the notes sued upon in this action; that the said Smith produced said certificates of stock, and he, the defendant, signed the blank assignments on the back thereof; that said certificates of stock so assigned were retained and taken away by said Smith, acting for and in behalf of the plaintiff; that plaintiff has neglected and failed to surrender said notes, as it agreed to do.
The plaintiff company was incorporated under the laws of California in December, 1913. At the trial the defendant made offers of proof in respect to the several matters alleged in his answer. Upon objection the testimony was excluded. The defendant excepted, and has assigned the rulings of the court as error.
“ ‘In the absence of fraud or mutual mistake, no representation, promise, or agreement made, or opinion expressed, in the previous parol negotiations, as to the terms or legal effect of the resulting written contract, can be permitted to prevail, either in law or in equity, over the plain provisions and proper interpretation of the contract.’ N. Y. Life Ins. Co. v. McMaster, 87 Fed. 63, 71,*419 30 C. C. A. 532, 540: Conn. Fire Ins. Co. v. Buchanan, 141 Fed. 877, 897, 73 C. C. A. 111, 131, 4 L. R. A. (N. S.) 758; Omaha Cooperage Co. v. Armour & Co., 170 Fed. 292, 297, 95 C. C. A. 488, 493.” Sioux Falls Nat. Bank v. Klaveness, (C. C. A.) 264 Fed. 40.
As the offer of proof of the transaction of November, 1914. was properly excluded on the ground above indicated, it becomes unnecessary to discuss or decide whether the plaintiff would have been bound by the agreement, bad said Smith been authorized by plaintiff to enter into it. We find no error in the record.
Judgment affirmed.
HOOK. Circuit Judge, sat in the case, concurred in the conclusions reached, but died before this opinion was written.