82 Neb. 777 | Neb. | 1908
Plaintiff brought this action in the district court for Hayes county to recover damages for breach of an oral contract whereby the defendant assumed and agreed to pay a certain note and mortgage previously executed by plaintiff. A jury was waived and trial had to the court, resulting in a judgment for plaintiff. The defendant has appealed.
The plaintiff Wiltrout was the owner of a tract of land in Hayes county which he had mortgaged to secure his principal promissory note for $500, with interest coupons attached. He afterwards sold and conveyed the land to the defendant Showers. The consideration agreed upon was $3,800. The defendant paid $3,300, and orally assumed and agreed to pay the notes and mortgage for the remainder of the purchase price of the land. The deed contained a covenant warranting the premises‘to be free of incumbrance. Showers neglected to pay the notes and mortgage, and after they became due the holder brought an action at law in the county court against both Wiltrout and Showers to recover upon the notes. In that action Wiltrout made default and Showers answered, denying liability. Showers, however, paid $475 upon the notes before the case came to trial in the county court, leaving
In this court the defendant urges that the judgment entered in the court below is erroneous because the record discloses that the matter in controversy in this action had been litigated and decided in the county court, and that by reason thereof the matter had become res judicata. The action in the county court was brought by the holder of the notes and mortgage, and a recovery was sought upon the principal promissory note and one interest coupon. The plaintiff also set out in his petition the facts with reference to the agreement of Showers to assume and pay the notes as a part of the purchase price of the land. As between the two defendants in that action no issue was joined. Wiltrout and Showers were not adverse parties. The question of liability of Showers on the oral contract to assume and pay the notes was not litigated and determined as between Wiltrout and Showers. The rule of law is well settled that parties to a judgment are not bound by it in a subsequent action unless they were adverse parties in the original action. 1 Freeman, Judgments (4th ed.), sec. 158; 2 Black, Judgments (2d ed.), sec. 599; Pioneer Savings & Loan Co. v. Bartsch, 51 Minn. 474. The bar of former adjudication can only be raised between those who were adverse parties in the former suit, and the judgment in the former suit settles nothing as to
Defendant contends that parol evidence is not admissible to prove the contract whereby ShoAvers assumed and agreed to pay the notes and mortgage. His theory of the case is that the deed constitutes the contract, and he invokes the well-knoAvn rule that the terms of a Avritten contract cannot be altered or varied by parol testimony. It should be observed that the contract whereby the defendant assumed and agreed to pay the mortgage is not a necessary part of the deed of conveyance. Such contract may exist separate and apart from the deed. Another general rule of law that is applicable to the case is that the true consideration for a deed of conveyance may be inquired into and ascertained by parol evidence. The reason for this rule is that a change in or contradiction of the expressed consideration does not in any manner affect the
Defendant urges that, even if he assumed to pay the notes and mortgage, he had been discharged from his obligation; that by-the payment of the $475 he was to be released and discharged^ from any further liability. He contends that by the contract of assumption he became the principal and the plaintiff herein the surety, and that he having been discharged by reason of the payment would work a discharge of the surety, and that plaintiff was not bound to pay the judgment obtained against him in the county court. No such defense was pleaded by the defendant in his answer. This question was not an issue in the case, and, had it been an issue, the evidence would not sustain his contention. The evidence goes no further than to show that the defendant paid $475 upon the obligation which he should have paid in full. The evidence does not show that any composition or settlement was made between the defendant and the holder of the notes and mortgage. The record clearly shows the making of the contract, the breach thereof, and that plaintiff has sustained damages in consequence thereof in the amount for which judgment was rendered in the district court.
The judgment appears to have been properly rendered. No reversible error is shown, and we recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.