179 Iowa 261 | Iowa | 1916
The petition sets out a copy of the note, and alleges its execution June 21, 1913, and alleges further that thereafter, and long prior to the maturity of said note, the plaintiff discounted said note and the same Avas duly assigned, transferred and delivered to it by indorsement thereof; that plaintiff hoav is, and at all times since the discount thereof has been, the owner and holder of said note.
The anSAver Ayas in three counts. The first alleges, substantially, that the note sued on is one of four notes provided for in a written contract for a deed for land, which, together with a contemporaneous verbal contract, constituted the entire transaction betAveen this defendant and the Star Land Company; that the said note has never been legally deliA-ered to the said Star Land Company, for the reason that it was agreed by and between defendant and said land company that the note was turned over to the land company by defendant wholly upon the condition that defendant Avas to haAre until September 1,1913, to determine whether or not the delivery of the said note should be completed, and
Plaintiff filed no reply to the ansAver. The errors assigned relate to the instruction by Avhich it is claimed by plaintiff that the court Avithdrew Counts 2 and 3 of the ansAver without withdrawing the evidence which had been introduced in support thereof, and the instruction in regard to notice to the bank of the defense set up by defendant, and that the court erred in admitting evidence over plaintiff’s objection. We shall endeavor to take up the different propositions in the order of importance as indicated by the arguments, rather than in the order in Avhich they have been argued.
It is contended by plaintiff that the note is a plain, complete and unambiguous contract containing an unqualified promise to pay, and that the parol testimony is a contradiction of the note, and therefore incompetent. There is no question, of course, as to the general rule that parol testimony is not admissible to vary or contradict the terms of a writing. Plaintiff cites Miller v. Morine, 167 Iowa 287; Blumer v. Schmidt, 161 Iowa 682; Cochran v. Zachery, 137 Iowa 585; Mosnat v. Uchytil, 129 Iowa 271; Western Electric Co. v. Baerthel, 127 Iowa 467. We shall not review these cases, but content ourselves with stating that these -were all cases where the parol testimony sought to be introduced contradicted or varied the terms of the writing, or added to or took from or specifically changed the terms of the writing. On the other hand, it is contended by appellee that a parol contemporaneous agreement may be proven in connection with a written contract if it does not vary the terms of a writing, and that there may be a conditional delivery of a note, as alleged in this case, and that such condition may be sIioavu by parol. To sustain these propositions, they cite Section 3060-al6, Code Supp., 1913; Larson v. Sequin, (S. D.) 149 N. W. 174; Oakland Cemetery Assn. v. Lakins, 126 Iowa 121; McCormick Harv. Machine Co. v. Morlan, 121 Iowa 451; Selma Sav. Bank v. Harlan, 167 Iowa 673; Murdy v. Skyles, 101 Iowa 549; 9 Encyc. of Evidence, 353. See, also, Hinsdale v. McCune, 135 Iowa 682.
As said, appellee introduced testimony to sustain his claim as to the parol contract and that it was understood that the writing should not be delivered or considered to be in force until September 1, 1913. The note in question was negotiated before that date, sometime in August, 1913. The rule of the cases, stated briefly, is to this effect: That parol evidence is admissible to show that an instrument was never in fact delivered as a present contract, unconditionally binding, according to its terms from the time of delivery, but that it was delivered to become an absolute obligation upon the happening of a certain event or contingency, and that such event or contingency had never occurred. The holdings are that such evidence does not contradict or vary the terms of the written contract, but tends to show that the instrument has never had any legal force rendering it valid and binding as between the parties. This is the rule of our own cases.
There is nothing in Section 3060-alG, Code Supp., 1913, to sustain appellant’s contention that the evidence is incompetent. On the contrary, it provides in part as follows:
“Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a
It is true, of course, that appellant 'would be protected if it is an innocent holder in due course without notice. We are of opinion that the evidence was competent and properly admitted, and is a complete defense, unless it be shown that plaintiff is an innocent holder.
“That, if prior to acquiring said note, any of the officers of the plaintiff bank had actual notice of the facts and circumstances now relied upon by defendant as a defense to said note, then plaintiff is not a holder in due course.”
“What knowledge the officers of plaintiff bank had is for yon to determine from the evidence that has been offered upon the trial.”
The evidence related to notice to the cashier, and clearly the jury could not have been-misled by the instruction. They would understand that the court had reference to the evidence that was introduced. The cashier is the officer of the bank who purchased the note of the land company.
“This is the only defense pleaded by defendant to said note that is submitted to you.”
And then proceeds to instruct the jury as to the law in regard to this matter: that if, at the time the note was executed and delivered to the land company, it was agreed in párol as claimed by defendant, then defendant had the right to revoke the contract and receive the return of the note, and that a failure to do so would constitute a defense, unless plaintiff established that it was a holder of the note in due course. This is only the substance of the instruction. Appellant’s thought is that Count 1 of the answer contained nothing on the subject of plaintiff’s being a bona fide holder of the note, and that there was no general denial in Count 1; that the court otherwise instructed on the question of plaintiff’s being a good-faith holder of the note, and thereby submitted, as appellant contends, an issue not arising in the case. It is also complained by appellant, in reference to this, that the court erred in submitting the first- count of the answer alone, without withdrawing from
5.And for the same reason, eyidence that the land company had itself conveyed the land to another was proper.
There is no prejudicial error, and the judgment is— Affirmed.