Shepard v. M. B. Haas & Co.

| Kan. | Jan 15, 1875

The opinion of the court was delivered by

Brewer, J.:

Defendants in error brought an action on an account for merchandise sold' and delivered to plaintiffs in error. f The correctness of this account was not disputed, but plaintiffs in error claimed an offset as follows: They alleged in substance that Haas & Co. .(the defendants in error) sold and agreed to assign to one Joseph Wheat a note and mortgage of the value of $351.25; that the money paid by Wheat therefor was the money of H. D. Shepai’d & Co., and that all claims for the money and the note and mortgage were assigned to plaintiffs in error, and that defendants in error refused to return the money, or assign the note and mortgage. Upon the trial it appeared that these papers were executed at the time of the negotiations between Haas & Co. and Wheat:

“Burlingame, Aug. 13th, 1872.

“Rec’d of Joseph Wheat one draft at sight, dated August 13th 1872, for $200, on Messrs. Gregory, Strader & Co., Kansas City, Mo., which, if said draft of $200 is paid and promptly honored and be placed to the credit of Joseph Wheat, in full of the account of Craig & Wheat. Haas & Co. Otherwise this receipt to be of no effect, and void.”

“Which if said property is foreclosed to be bought by Haas & Co., and make a deed to Joseph Wheat. August 13th, 1872. Haas & Co.

The expense to be paid of foreclosing and costs by Jos. Wheat.”

Upon the presentation of these papers, (for they are spoken of as two exhibits,) the court ruled out all evidence tending to show any agreement between the parties other than as therein expressed, and this is the alleged error. The direct question was asked the witness Wheat, whether there was any other and further agreement between Haas & Co. and himself than is expressed in these writings — but the court sustained an objection to the question. It appeared from the evidence that the property referred to in the exhibits was a mortgage on some property in Newton, Kansas. The witness Wheat testified that the last clause in the second exhibit referred to the costs of foreclosing this mortgage. He was also asked at whose option this mortgage was to be foreclosed, and whether the mortgage was to be foreclosed without his request, and whether Haas & Co. were to do anything in case there was no foreclosure. All these questions were objected to, and the objections sustained. In these rulings we think the court erred. Doubtless these exhibits are something more than receipts. They are, in some parts at least, evidently contracts, and thus within the rule which forbids parol testimony to vary or contradict written agreements. But the existence of a written contract does not always exclude the possibility of a cotemporaneous parol agreement bearing upon the same general subject-matter, yet referring to some point or phase of it not expressed in the writing. And this written agreement, obscure and uncertain as it is, evidently does not reach to all the matters of ordinary consideration in a transaction like the one 'at bar. Without noticing others, it is enough to refer to the question at whose option the foreclosure was to be had. Upon this the written agreement is silent, and nothing can be implied from the language used concerning it, yet it was a proper matter of agreement, and one ordinarily determined in such an agreement. But whatever were the facts of the case, it is possible that there was some cotemporaneous parol agreement, not contradicting nor varying the written, and yet having some bearing upon the matters in issue. The court refused to let the witness testify whether there was or not, and in this erred. It is true, that the first part of the exhibits speaks of the receipt of the $200 as in foil payment of an account; but it is also evident from the remaining portion that either in consequence or as a part consideration of the payment, the witness Wheat had some rights in a note and mortgage in the possession of Haas & Co. What the extent of those rights was, is from the papers doubtful. Perhaps it would have been made clearer if the rejected testimony had been admitted.

But it is insisted by counsel for defendant in error that the assignment of error is insufficient. The assignment is — “that the said court erred in ruling out the evidence offered by the said H. D. Shepard and J. J. Playford, on the trial of said action, to which they at the time excepted.” And it is objected, that it does not specify the particular evidence whose rejection is assigned for error. Notwithstanding the authorities cited from Indiana, by the learned counsel, it seems but a necessary deduction from questions already decided in this court to hold the assignment sufficient. DaLee v. Blackburn, 11 Kan., 190" court="Kan." date_filed="1873-01-15" href="https://app.midpage.ai/document/dalee-v-blackburn-7883321?utm_source=webapp" opinion_id="7883321">11 Kas., 190.

The judgment of the district court will be reversed, and the case remanded for a new trial.

All the Justices concurring.