15 Colo. App. 378 | Colo. Ct. App. | 1900
This action is based on a promissory note. It is a promise to pay one year after date to the order of E. E. Hill, $588
These two questions are the only ones which are of sufficient importance to justify a reversal of the case, and all others suggested by the record are inconsequential.
No more conservative rule of evidence has ever been established than that which inhibits the introduction of parol evi.dence of a contemporaneous agreement to modify the terms and conditions of one in writing. I believe it is as wise a rule as the doctrine which was incorporated into and became what is known as the statute of frauds. I am decidedly of the opinion that it would be a much wiser and safer doctrine to permit no evidence to be offered contradicting the terms of a written instrument unless that evidence is in writing. It tends to the conservation of the integrity of written contracts, the preservation of property rights and interests and the prevention of untold and almost illimitable prevarication. The attempt to enforce a liability which the parties believe to be unjust because of parol understandings affords a terrible temptation to a defendant to attempt as he conceives to compel the doing of that which is right and was agreed to by stating as the agreement what may avoid the express terms of the promise. To bring about this result they put their understandings into the form of express promises, specific agreements, antecedent conditions, or conditions subsequent, and are often led to enlarge, broaden and make specific matters which before were limited and uncertain. The temptation is almost too great for frail humanit}7, and therefore I believe personally that there ought never to have been an exception en-grafted on that rule. Notwithstanding this fact the rule is otherwise and this court in the JBarets case, speaking by me, recognized an exception to the doctrine. In that case this court went no further than to hold that wherever parties were able to prove that a piece of commercial paper had been executed and had passed into the possession of a partjr, but under circumstances which would not make the transmission a delivery under the law merchant, the party might show the cir
As we said in the Bare-ts case it ought to be established beyond peradventure, and there ought to be no question in the mind of the court or the jury trying the case, respecting the truth of the evidence offered to support the contemporaneous parol agreement. The evidence ought to be clear, decisive, emphatic and undoubted. Apparently the court believed the statement of these witnesses although they were contradicted by Hill, and emphatically attached by proof of these payments extending over a couple of years on the outstanding paper. It is quite difficult as the case is presented to us on paper to understand how the court arrived at the conclusion. Doubtless the witnesses impressed him with their truthfulness and he believed their story, although it was so .directly contradicted by the terms of the paper and by the history of the transaction. I gravely doubt whether the court ought to try this case even by consent of parties. I quite believe it is one of those cases peculiarly for a jury, and if the jury renders a verdict finding the facts as the court found them it will probably settle the matter. The cases supporting the doctrine are Burke v. Dulaney, 153 U. S. 228, Hurlburt v. Dusenbery, 26 Colo. 240, and Brewing Co. v. Barets, 9 Colo. App. 341.
While the preceding discussion determines what is in reality the important question in the case, yet the appeal will turn upon another matter. As foreshadowed by the statement, during the trial of the case, the plaintiff in support of the paper and in contradiction of the evidence of the witnesses concerning the agreement to pay out of the proceeds of the mill, offered to prove the statements which they made at the time they made the several partial payments to
Reversed.