Gurney v. Morrison

The opinion' of the court was delivered by Hoyt, C. J. Respondent brought this action to recover the amount due upon five promissory notes alleged to have been executed by the appellants. The •execution of the notes was admitted by the answer, and by way of affirmative defense said answer set up the alleged fact that the notes were given for the purchase price of certain goods, that thereafter with the •consent of all parties the goods were delivered to an* ■other party to whom the respondent agreed to look for his pay. From the undisputed testimony introduced at the trial, it appeared that at the time the notes were ■executed and delivered to the respondent and as a part of the same transaction, a contract was entered into between the respondent and the appellants, in which it was agreed that in consideration of the sum of $1,600 in cash and the future payment of the further sum of $4,800, to be secured by the execution of the notes in question, and other considerations, the' respondent agreed to deliver to the Gurney Cab & Transfer Company of Bellingham Bay, composed of the appellants, certain personal property described in said contract. It further appeared from the undisputed proofs that, in pursuance of such contract, the property therein described was delivered by the respondent to said Gurney Cab & Transfer Company. ■A prima facie case on the part of the respondent against the appellants was thus fully established. This prima facie case was sought to be overcome by proof of an alleged understanding at the time of the execution of the notes and contract, to the effect that the transaction was for the benefit of, and to be carried [458] into effect by the Gurney Cab & Transfer Company of Bellingham Bay, a'corporation tobe thereafter organized; that the notes were given by the appellants only for the purpose of securing their co-operation in the organization of such corporation and were to have no binding effect against them after it had been so organized. Some testimony tending to establish this claim was introduced over the objection of respondent. Other testimony offered for that purpose was excluded and its exclusion is one of the errors relied upon by the appellants. It was abundantly shown by the proofs, and in fact is admitted in the brief of the appellants, that the making of the notes and the contract' above referred to, constituted but a single transaction. This being' so, it must be presumed that all the negotiations between the parties up to and including the making of said notes and of the entering into said contract, were merged therein, and proof of any oral understanding or agreement between the parties, which would in any manner alter or affect the force of such notes or contract, was under well settled rules inadmissible, unless upon the face of said papers there was some ambiguity, to explain which it was necessary to understand the state of the negotiations between the parties-at the time of their execution. The notes were in the usual form and in no way ambiguous. It is in the contract that such ambiguity must be found, if found at all. We have carefully examined its terms and are unable to find therein anything in the least degree uncertain or ambiguous. By its terms it is agreed upon the part of the respondent, that, for certain considerations therein named, he will assign certain franchises and deliver certain articles of personal property therein fully described, and its terms are so [459] direct and certain that it would not have been easy to have drawn a contract, which would have more clearly set forth the obligations of the respective parties. From the brief of appellants, it is not clear just what part of the contract is claimed to have been ambiguous, but we gather therefrom that such claim grows out of the fact that the respondent did not agree to deliver the goods to them, but to the Gurney Cab & Transfer Company of Bellingham Bay. It appeared upon the face of the contract that said Gurney Cab & Transfer Company-was composed of the defendants, and therefore the agreement was to deliver the goods to the defendants under a certain partnership or corporate name. But even if the agreement had been to deliver the goods to a third party having no connection whatever with the defendants, that fact would not tend in any degree to make the language of the contract ambiguous. In our opinion it was not competent for the appellants to introduce oral testimony as to any understanding or agreement, which would in any manner affect their liability as the makers of the notes in question, or upon the contract executed between them and the respondent before or at the time the notes and con.tract were made and delivered. For that reason the court rightfully instructed the jury to find- a verdict, for the respondent, unless there was proof tending'kcshbw an agreement between the respondent and the appellants subsequent to the making of the notes, by which they were released therefrom. ■ We have examined all the proofs contained in the record upon this question and are satisfied that the trial court was right when it held that it was not sufficient to authorize the question to be submitted to the [460] jury. The proof of any such agreement, even between the respondent and the appellants, was of such a vague and uncertain character, that it might rightfully have been entirely disregarded. But even if it had sufficiently established the fact that there was such an understanding as between the respondent and the appellants, such agreement or understanding would have been of no effect for the reason that there was no consideration therefor. It is contended in the brief of appellants that there was proof tending to show that the corporation known as the .Gurney Cab and Transfer Company of Belling-ham Bay, at the time of the alleged agreement, assumed the payment of the notes and that such assumption furnished a good consideration for the release of ap7 pellants, but we are unable to find anything in the evidence which warrants any such contention. • Not only was there an absence of competent proof to establish the affirmative defense set up in the answer of appellants, but on the contrary all of the circumstances surrounding the transaction, together with the testimony of respondent, tended directly to disprove such defense. ■ If the security had been given.only for the purpose stated • by appellants, it would have been natural that the entire amount should have been put in one note due at a certain time. Instead of that we find several notes,'each falling due upon a different day, which would be the usual course where part of the consideration to be paid for goods furnished was to be in cash and part in deferred payments. In our opinion all the testimony introduced, which in any degree tended to show any other agreement than that evidenced by the notes and written contract, should have been excluded. It follows that there was nothing to [461] go to the jury upon the questions raised by such affirmative defense. . The respondent was therefore entitled to a directed verdict and the judgment rendered thereon must he affirmed. Scott, Dunbar, Anders and Gordon, JJ., concur.