Carr v. Jones

The opinion of the court was delivered by Hadley, J. Appellant is the executor of the estate of Gr. W. Hertges, deceased. Eespondent is maintaining — 80 — this suit against appellant to recover possession of a certain promissory note or written obligation, of which the following is a copy: “Bank of Montesano, Montesano, Wash., Feb’y 15, 1897. On ox before May 15, 1897, I promise to pay to- G. W. Iiertges, or order Two Hundred and Forty Dollars fo-r ihe account Bank of Montesano-, Montesano-, Wash. Value- received. Payable in ease taxes on Bank of Mo-ntesano- personal property are not rebated on or before that time, or such part, of the above sum as may not be rebated on or before that date. F. L. Oarr.” The amended complaint alleges that on or about the 15th day of February, 1897, respondent was a stockholder and a member of the board of directors of the Bank of Montesano-, a corporation doing business in Montesano-, Ohehalis county, Washington, and that on or about that date the said bank made a sale of a portion of its assets to said Hertges in consideration of his assuming certain liabilities due from said bank to- its creditors; that amo-ng the liabilities of said-bank was an item o-f personal property taxes for* the year 1895, then due-, in the aggregate sum of $842.78; that the said item made the- liabilities assumed by Hertges exceed thei amount of assets purchased by him in the sum of $240, and that said note in question was made by respondent to- said Hertges as a guaranty that said item of taxes would be rebated by the board of co-unty commissioners, on account of excessive taxation, in at least the sum o-f $-240, and so that the assets received by him in said sale would equal the liabilities assumed by him; that, in case no- rebate of said taxes was secured, then respondent was- to- be liable upon said note in the amount o-f the face thereof, but that it was then and there- agreed between respondent and said Hertges, that, should said personal property taxes for said — 81 — year be reba.ted in the sum of $240, then said note was to-be returned, to respondent, and the same was given and réceived as a guaranty only that said taxes would be rebated in at least said amount; that after the making of the note, and prior to its maturity, the taxes were duly rebated by the board of county commissioners of said county and by the city council of Monte-sano in such manner and form’ as to reduce the said sum- of $842. Y8 by more than $240, and that said reduction constituted tbe happening of tbe event whereby respondent was entitled, to a surrender of said note; that said taxes were reduced in such an amount and were liquidated for such a sum, less than the original amount, as to save said Hertges harmless upon said purchase of assets, and so as to bring the liabilities assumed by him as aforesaid within the aggregate amount of assets received by him in said sale; that respondent is now the owner of the note, and is lawfully entitled to its possession, but that tbe same is wrongfully detained from him by appellant; that the note has no actual value, save and excep¡t that upon its face it purports to he an item of indebtedness against respondent; that respondent, has demanded the surrender of the note, which has at all times been refused. Judgment is prayed for the face amount thereof in case a delivery cannot be bad. Tbe answer admits tbe execution of the note as above set out, but denies generally other material allegations of the complaint. It also contains an affirmative defense, which is denominated a “counter-claim/’ in which it is alleged that said note was given to save said Hertges harmless from the whole of the unpaid taxes against the bank; that when the note matured there was due and unpaid of taxes against the hank more than the sum of $240, which has never been paid by respondent, or by any one in bis be — 82 — half; and judgment is. demanded against respondent for said sum. with interest on the note1. The cause was tried by the court without a jury, and judgment rendered in favor of respondent, from which this appeal was taken. It is assigned as error that the court overruled the demurrer' to. the amended complaint. The only point suggested under this assignment is that according to the complaint. the note was paid, and was therefore valueless. Appellant submits that there is no affirmative remedy to recover such valueless paper. We think the point is not well taken. When an outstanding note has been paid, it is not only the right of the maker to. have possession thereof, hut it is a duty he owes to himself and others to secure control of it, and thus prevent any possibility that it may, by mistake or otherwise, pass into, the hands of a purchaser. Timely care in the exercise of such right may. prevent subsequent troublesome litigation. The demurrer was properly overruled. It is next assigned that the court erred in admitting evidence to vary and contradict the terms of the note. The evidence referred to related to what was intended by the language of the note and by the parties, as alleged in the complaint. The court expressly stated that the evi•clence was not. admitted to vary the terms of the instrument, hut for the purpose of explaining what was intended by the writing. It was the view of the court that •the language used in the note was ambiguous, by reason ■of the use of the words “or such part of the above sum as may not he rebated,” without stating to wha.t the words “above sum” related. The court held that parol evidence was necessary to explain whether said words related to the sum mentioned as the amount of the obligation of the note, or to the amount of taxes referred to therein. Standing alone and unexplained, the note, in the respect men — 83 — tioned, it seems to us, is indefinite and uncertain, and is easily susceptible of two constructions. It was, therefore, proper to admit oral testimony to explain the term's of the note in the light of the intention of the parties when it was made. Appellant urges the well-known' rule that parol evidence is inadmissible to contradict or vary the terms of a valid written instrument, and the authorities cited are to that point. The rule is probably one of universal application. The writing cannot be contradicted or varied by parol evidence, and when its meaning is unmistakable no parol testimony is needed or proper. But when the language is such as renders its meaning doubtful, resort must be had to other testimony in order to ascertain the meaning and intent of the parties by the language used. Such evidence is restricted to the interpretation of the language used, and its only purpose is toi enable the court or jury to determine what the language really means. Wharton, Evidence (3d ed.), § 937, and cases cited. We think the court did not err in admitting the testimony for the purpose for which it was received and considered in this case. It is next assigned that the court erred in admitting the testimony of respondent and other witnesses on the ground that the payee of the note is dead, that appellant is his executor, and that the witnesses are interested in the controversy. It is urged that the testimony was admitted in violation of the provisions of § 5991, Bal. Code, which precludes a party in interest or to the record from testifying as to< any transaction had by him with, or any statement made to him by, a deceased person, when the adverse party sues or defends as executor, administrator, or legal representative of such deceased person. The testimony of respondent himself as to such transactions and statements was all stricken by the court, and was not considered, — 84 — which cured any error as to, any of respondent’s own testimony. Other witnesses testified as to the transaction and as to statements made by the deceased. These witnesses were stockholders or directors of said bank at the time the aforesaid sale of assets was made. They were interested, no doubt, to see that the sale was made; but they were in no way parties to the note given by respondent, and assumed no liability thereon. That was respondent’s individual obligation only, and was a transaction between him and the deceased alone. The evidence shows that any consideration which may have existed between respondent and the witnesses in relation to the note had already passed, and that respondent assumed the obligation absolutely as his own. The witnesses have no financial interest in the result of this litigation one way or the other. The mere fact that respondent assumed the obligation of this note, whatever may be the meaning of its terms, was mutually treated by respondent and the witnesses as a cancellation of an obliga,tion already due from him to them; and whether he shall be compelled to pay the whole or any part of the note is of noi interest to them. Ho claim for contribution can arise in favor of respondent and against the witnesses, for the reason that, before the note was given, respondent had received from the witnesses the full am'ount of any consideration upon which such, claim of contribution can be based. We are unable to see that the witnesses have any interest in the controversy, within the meaning of the statute, and therefore think the court did not err in receiving their testimony. The next error assigned is- that evidence was admitted to prove that a rebate of taxes was made It is insisted that the note referred to a lawful rebate, and that proof of an order of the county commissioners or city council was not evidence of a lawful rebata It was the view of the super — 85 — ior court that inasmuch as the deceased accepted the benefit ■of such rebate or reduction, and settled the taxes on that basis, receiving receipts purporting to be in full cancellation of the whole tax, without raising abjection to the manner in which the reduction was obtained until after the maturity of the note, his executor cannot now attack the manner of such reduction in this action. It was further the view of the court that when respondent had shown that the treasurer had accepted from the deceased a reduced sum for the taxes, and had receipted in full for the whole tax,. which settlement was accepted and acted upon by the deceased, the burden then devolved upon appellant to show that the treasurer ivas not legally authorized to accept such reduced sum in cancellation of the whole tax. We think, in any event, the latter view is correct, and that in the introduction of respondent’s case evidence as to the manner of the reduction was immaterial, when it was shown that a reduction was in fact made,which was accepted and acted upon by the deceased. The admission of respondent’s testimony in relation to the manner of the reduction was therefore no more than harmless error. It is last assigned as error that the court denied the motions for non-suit and for new trial and rendered judgment for respondent. We think the evidence was sufficient to support the court’s finding that the meaning of the language used in the note was to secure said Hertges fortheexcessof liabilities assumed by him over the assets transferred to him in his deal with the bank of Montesano, and that, in case a rebate or reduction of personal property taxes equal to or in excess of $210 was obtained, the note was to be returned to the maker; that, if a less amount of reduction was, obtained, such less amount should be credited ■upon the note, and respondent should be liable for the difference. The evidence showed a settlement of the taxes — 86 — for a sum less than the original amount by more than $240. The court’s conclusion, therefore, was that- there is no longer any obligation existing upon the note, and that respondent is entitled to its possession. It is appellant’s contention that respondent remained obligated upon the notei as long as any portion of the tax was not rebated or paid, provided that he should not be liable for more than the amount stated in the notei. Respondent’s evidence was, however, to the contrary, and the motion for non-suit was properly denied. The court also found the preponderance of the evidence to be against appellant’s contention, and we think the finding is sustained by the evidence as it appears in the record. The questions involved in the motion for new trial have already been discussed. We believe no material error was committed, and the judgment is affirmed. Reavis, O. J., and Dunbar, Fullerton, Anders, Mount and White, JJ., concur.