Swan v. Le Clair

*427 MR. CHIEF JUSTICE CALLAWAY delivered the opinion of the court. The arguments of counsel have taken a wider range than we think necessary to the determination of the case. “The execution of a contract in writing, whether the law requires it to be in writing or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” (See. 7520, Revised Codes 1921.) “When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (1) Where a mistake or imperfection in the writing is put in issue by the pleadings; (2) where the validity of the agreement is the fact in dispute.” Such is the language in part of section 10517, Revised Codes of 1921. Any attempt to clarify the statutory language would be supererogatory. Neither mistake nor ambiguity in the writing was in issue nor was there any question as to its validity. *428 Long ago this court adopted from Brown v. Spofford, 95 U. S. 482, 24 L. Ed. 508, the following language: “Parol evidence of an agreement, made contemporaneously with a promissory note which contains an absolute promise to pay at a specified time, is not admissible in order to extend the time for payment, or to provide for the payment out of any particular fund, or in any other way than that specified in the instrument, or to make the payment depend upon condition.” (Knox v. Gerhauser, 3 Mont. 267.) The maker and indorsers of the note promised in writing to pay the bank so much money, with interest, at a definite time; the promise was an essential part of the contract. Whatever other contemporaneous negotiations or stipulations respecting payment there may have been between the parties were superseded by the writing; an oral contemporaneous agreement relating to the essential provision of the note respecting payment necessarily varies and contradicts that provision. This seems too plain for argument. Under the pleadings there can now be no evidence of the terms of the promissory note other than the writing itself. (Fisher v. Briscoe, 10 Mont. 124, 25 Pac. 30; Nelson v. Spears, 16 Mont. 351, 40 Pac. 72; Gaffney Merc. Co. v. Hopkins, 21 Mont. 13, 52 Pac. 561; York v. Stewart, 21 Mont. 515, 55 Pac. 29; Riddell v. Peck-Williamson H. & V. Co., 27 Mont. 44, 69 Pac. 241; Hogan v. Kelly, 29 Mont. 485, 75 Pac. 81; Kelly v. Ellis, 39 Mont. 597, 104 Pac. 873; Western Loan & Sav. Co. v. Smith, 42 Mont. 442, 113 Pac. 475; Pritchett v. Jenkins, 52 Mont. 81, 155 Pac. 974.) As attorneys for plaintiff suggest, it is not and cannot be contended that the instrument was to become effective only upon a condition precedent agreed upon at the time; the alleged agreement relates to the matter of discharge or payment alone. The action is in effect between the original payee and the original signers. So there is no question between indorsers as there was in Anderson v. Border, 75 Mont. 516, 244 Pac. 494, relied upon by defendants. *429 Counsel for defendants seek to obviate that which they term the parol evidence rule by asserting that the evidence which they were permitted to introduce in support of their answer was admissible for the purpose of showing at least a partial failure of consideration for the note. Absence or want of consideration, total or partial, is a defense which must be pleaded. (United States Nat. Bank v. Chappell, 71 Mont. 553, 230 Pac. 1084.) There is no such plea here, but regardless of that, upon the facts shown we think there is no merit in the point. The judgment must be reversed, but it is unnecessary to order a new trial. The defendants are liable upon the promissory note for the amount thereof,' less the payment made July 14, 1922. It is true payment was made upon a note given by two of the defendants, Le Clair and Lemire, in renewal of the note here sued upon, the renewal note having been given at the instance of the bank to make the bank’s records “look good,” in the language of Mr. Lemire. The note sued upon by the bank was retained as “collateral security” for the renewal note. The fact is, regardless of the form, that the sum of $122.96 was paid upon the indebtedness represented by the note, and the defendants are entitled to the benefit of it. The plaintiff is entitled to a reasonable attorney’s fee also, which is provided for in the note. This the court may fix and include in the judgment. (Bovee v. Helland, 52 Mont. 151, 156 Pac. 416; Bohan v. Harris, 71 Mont. 495, 230 Pac. 586.) The judgment is reversed and the cause is remanded to the district court of Lake county, with direction to enter judgment in favor of the plaintiff in accordance with the views expressed in this opinion. Reversed and remanded. Associate Justices Galen, Stark and Matthews and Honorable Henry G. Eodgers, District Judge, sitting in place of Mr. Justice Holloway, absent on account of illness, concur.