Stein v. Fogarty

SULLIVAN, J. This is an action on a promissory note. The answer admits the execution of the note, but alleges, at the time of the execution of said note, and as a contemporaneous act therewith, the plaintiff and defendant mutually agreed that said note should be paid by the defendant in work and labor as a plumber, at the usual rates, and upon a certain house in Boise City, the property of plaintiff, then being constructed by him. The cause was tried by the court without a jury, and resulted in a judgment for the defendant. Thereupon plaintiff moved for a new trial, which motion was granted, and a new trial ordered. This .appeal is fro-m the [704] order granting a new trial. The promissory note sued on is as follows: ■“250.1 Boise City, Idaho, July 6tb, 1893. “Four months after date, for value received, I promise to pay to the order of C. A. Stein the sum of two hundred and fifty and no lOOths dollars, at First National Bank of Idaho, in Boise City, Idaho, with interest at one per cent per month from Oct. 6th, until paid. Should I fail to pay this note promptly at maturity, I further promise to pay reasonable additional to the amount thereof (principal and interest), as attorney’s fee, if suit is instituted hereon. (Signed) “JOHN J. FOGARTY. “Due Nov. 6th, 1893. No. 2,670.” The question involved in this case is whether parol evidence •of an oral agreement made contemporaneously with a promissory note which contains an absolute promise to pay a specified number of dollars, at a specified time, is admissible to prove that such note was to have been paid in work and labor. It is •a well-settled principle, based on public policy, that parol contemporaneous evidence is inadmissible to vary or contradict the terms of a valid written instrument. (1 Greenleaf on Evidence, see. 275.) In Forsythe v. Kimball, 91 U. S. 291, it was held that, in the absence of fraud, accident, or mistake, the rule is the same in both equity and at law that parol evidence of an oral agreement alleged to have been made contemporaneously with the making of a promissory note cannot be permitted to vary, qualify, or contradict, or to add to or subtract from, the absolute terms of such promissory note. (See, also, Brown v. Spofford, 95 U. S. 474; Conner v. Clark, 12 Cal. 168, 73 Am. Dec. 529.) It was not error to grant a new trial in this case, and the order granting the same is sustained. Costs of this appeal are awarded to respondent. Morgan, C. J., and Huston, J., concur.