Trites v. Abbott

BROWN, J. The plaintiff, Robena Trites, is the administratrix of the estate of her mother, Maggie May Murphy, deceased. Defendant Mary G. Abbott is likewise a daughter of decedent and is the wife of her co-defendant, A. O'. Abbott. On June 24, 1923, Maggie May Murphy delivered $500 of her money to the defendants, and as a part of the same transaction defendants executed and delivered to her their promissory note for $500 payable two years after date, with interest at 6 per cent per annum, payable semi *364 annually. This note was secured by a mortgage on defendants’ real property. Tbe mortgage was recorded by the mortgagee, and as tbe interest became due it was promptly paid by defendants and received by tbe mortgagee. Tbe only issue to be tried here is an affirmative defense pleaded by tbe defendants, to tbe effect that, at tbe time tbe note and mortgage were executed and delivered to tbe payee therein named, tbe parties thereto made a contemporaneous agreement which, in substance, provided that defendants would never be compelled to pay tbe note, “except in tbe event” that tbe payee became ill and needed tbe money, and that no such contingency ever occurred. Tbe answer also avers that, after tbe execution of tbe note and mortgage, tbe payee therein named “told said defendant Mary G, Abbott that she would never have to pay said $500 and that she desired tbe note destroyed. ’ ’ Tbe affirmative allegations of the answer were put in issue by tbe plaintiff’s reply. There was evidence admitted at tbe trial tending to substantiate tbe defendants’ allegations relating to tbe contemporaneous oral agreement set out above. To all such testimony plaintiff objected on tbe ground that it was incompetent, in that it tended to vary and contradict tbe terms of tbe written instruments. This objection is supported by numerous decisions of our court. In the early case of Portland National Bank v. Scott, 20 Or. 421 (26 Pac. 276), this court held that,' in an action upon a promissory note, where no illegality or fraud is charged, it is not competent to allege or prove a contemporaneous parol agreement for tbe purpose of changing, varying or in any manner altering tbe legal effect of tbe note. *365 Again in Wilson v. Wilson, 26 Or. 251 (38 Pac. 185), it was held that, where a promissory note is given for a definite sum and made payable on a day certain, it cannot be shown by verbal testimony that such note was intended merely as a memorandum and was not to be paid until the amount thereof could be realized out of a certain business venture. In support of its holding, the court there cited the case of Portland National Bank v. Scott, supra. To like effect are Edgar v. Golden, 36 Or. 448 (48 Pac. 1118, 60 Pac. 2); Colvin v. Goff, 82 Or. 314 (161 Pac. 568, L. R. A. 1917C, 300); Farmers’ State Bank v. Forsstrom, 89 Or. 97 (173 Pac. 935); Nickell v. Bradshaw, 94 Or. 580 (183 Pac. 12, 11 A. L. R. 623); McFarland v. Hueners, 96 Or. 579 (190 Pac. 584). The money in question in this case appears to have been given in consideration of the execution and delivery to Maggie May Murphy of a promissory note for $500, with a pledge of real property as security. Hence it was not a gift to the defendants. The note is written evidence of a promise to repay. Neither was there a gift of the promissory note or of the mortgage to defendants. In order to constitute a valid gift, either inter vivos or causa mortis, the property must have been delivered to the donee: Liebe v. Battmann, 33 Or. 241 (54 Pac. 179, 72 Am. St. Rep. 705); Grignon v. Shope, 100 Or. 611 (197 Pac. 317); Allen v. Hendrick, 104 Or. 202 (206 Pac. 733). There is evidence to the effect that decedent intended to release defendants from their obligation to pay the note. She so expressed herself upon her deathbed. She undertook to prepare a will, whereby the defendants would be released from the payment of the note; but so far as the record shows, she never executed the will, nor did she carry out her intention to release defend *366 ants from their obligation to pay. A case singularly in point is Cardoza v. Leveroni, 233 Mass. 310 (123 N. E. 672). The consideration for the note was not conditional, but consisted of the sum of $500, in coin of the realm: Colvin v. Goff, supra; Vincent v. Russell, 101 Or. 672 (201 Pac. 433, 20 A. L. R. 417). We regret that this case must be reversed and a decree entered foreclosing plaintiff’s mortgage. It is so ordered. Neither party will recover costs in this court or in the court below. Reversed and Decree Entered. Rehearing Denied.