117 N.W. 346 | N.D. | 1908
This is an appeal from an order of the district court of Pierce county denying plaintiff's motion for judgment notwithstanding the verdict, or for a new trial. The action was brought to recover upon a promissory note, executed and delivered by defendant to one Huida Rieck, which note, it is alleged, was, before maturity and for value, sold and indorsed to plaintiff, the stepson of the payee of said note. The complaint is in the usual form, and the answer, after admitting the execution and delivery of the note as alleged in the complaint, pleads payment in full prior to the -commencement of the action. The answer also denies that plaintiff purchased said note in due course of business, and alleges that he had full knowledge of all the facts concerning the consideration thereof at the time of his purchase. The answer then proceeds to set out the consideration for the giving of such note, and alleges that defendant purchased a hotel property from Huida Rieck for the sum of $900, agreeing to pay her $600, and to assume the payment of $300, which she then owed to one Hyde from whom she 'had heretofore purchased the property. It also alleges that Huida Rieck represented to him that the sum of $300 was the total amount owing by her to Hyde on her contract for the purchase of said property, and that such representations were falsely and fraudulently made, with knowledge thereof at the time they were made, and defendant alleges that there was at said time the sum of $400 •due said Hyde from her on such contract, and that defendant had to pay, and did pay, said sum, with interest, to- Hyde before he could get a deed for said property from her. It is also alleged that the •note in suit is one of four notes, for $100 each, which defendant •executed and delivered to Huida Rieck as part purchase price for •said property, and further that defendant has paid Huida Rieck .$500 and interest, and Hyde $400 and interest, being payment in full of the purchase price of said property.
At the trial the note in suit, after being properly identified, was 'introduced' in evidence, and is as follows: “$100.00. Devils Lake, 'N. Dak., Mar. 34, 1898. On or before the first day of December, 1903, for value received I promise to pay to Huida Rieck or order -one hundred ($100.00) dollars at the office of Albert M. Powell, In
There are 24 alleged errors assigned in appellant’s brief, but we are not required to notice them, except in a general way. The plea of ¡payment was not supported by the proof, but the defense sought to be established was that, in the purchase of the hotel property, Huida Rieck falsely represented that but $300 was at that time due Hyde from her, on the contract for deed to said property from Hyde to her, and that in fact there was a balance thus due of $400. Testimony was also introduced, over plaintiff’s objection, tending to show an oral agreement, to the effect drat if defendant was required to pay the $100 in dispute between Hyde and Huida Rieck, the note in suit should be canceled and surrendered to him. We think this testimony was improperly received. Such oral agreement is clearly at variance with the written contract relating to the same subject-matter, entered into a day or two after such oral negotiations took place, and hence the written contract must be held to have superseded such oral negotiations. Proof of such oral agreement was therefore clearly incompetent. Under the clause of the written contract above quoted Huida and John Rieck, her husband, agree to protect defendant in the quiet and peaceable possession of the property sold, as against any claims asserted by Hyde by reason of
The order appealed from, in so far as it denied plaintiff’s motion for a new trial, is reversed, and the cause remanded for another trial.