Barclay v. Pursley

Mr. Justice Green delivered the opinion of the court, June 4th, 1885. When, on the trial, the plaintiff gave in evidence the check in suit, and rested, he was entitled to a verdict in the absence of any defence. The addition of the letters “Fr.” to the defendant's signature did not, of their own force, qualify his liability. Notwithstanding their presence his obligation was direct, personal and.absolute. In order to relieve himself of [16] this liability he offered, and was permitted, to give verbal and written proof of the facts and circumstances attending the execution and delivery of the check. By means of these tacts and circumstances he sought to show that it was not intended, when he signed and issued the check, to impose a personal liability of his own, but of another person for whom he was acting as agent. He testified that the check was given to pay the debt of his employer, John Ardell, Jr., due under a written contract for driving logs through the plaintiff’s pool and dam. The written agreement was given in evidence, and various matters of fact, from which it was proposed to infer that the check was not intended as the check of Pursley, but of Pursley as the agent of Ardell. In this condition of things the plaintiff offered to prove his version of the facts and circumstances attending the giving and acceptance of the check, and especially, that he refused to receive it as an obligation of Ardell’s, that the defendant thereupon gaye him the check as his own check, saying he would be criminal if he did not pay it when due, and that in pursuance of this statement and relying upon the instrument as the check of the defendant, he took it as part of the consideration of the agreement. This offer of testimony was rejected by the learned court below,, and its rejection constitutes the only assignment of error in the ease. The chief objection to the admissibility of the testimony is that it is in contradiction of the written agreement and of the check sued on. It will be seen at once that it is an erroneous assumption to say that it is contrary to the agreement, since the agreement contains no provision as to the manner of payment, and payment under its terms might be made in any manner that the parties saw fit to agree upon. Of course payment in money by Ardell to Barclay would be the legal inference from the mere language of the instrument. But certainly the parties might agree that payment should be made by a note of Ardell’s, or by the note of a stranger or by a check of either, or by some specific personal chattel, or by any form of security mutually agreed upon, and such an arrangement would not be in the least degree obnoxious to the rule rejecting parol evidence contradictory of a written agreement. ■ Nor is the objection of any greater weight when applied to the check. This paper is not on its face the check of Ardell. On the contrary it is the cheek of Pursley, and it requires parol evidence to show that it either is, in fact, or was intended to be, the check of Ardell. But the moment that proposition is stated it is proved beyond question, that opposing parol testimony may be given to show that the check is what it purports to be, to wit, the check of Pursley. The letters “ Fr ” [17] added to Ms name are, in legal contemplation, mere meaningless hieroglyphics. They do not, of their own force only, detract in any manner from Pursley’s individual liability on the check. To produce such an effect parol evidence is indispensable, but if that is so it necessarily follows that opposing parol evidence is admissible to show that such an effect was not intended. In truth the latter testimony is more in conformity with the legal meaning of the instrument than the former. This is especially so in view of the fact that Pursley, wheu he executed the written contract for Ardell, did 'so by signing Ardell’s own name, thus — “ John Ardell, Jr. Pr. David Pursley For.”, whereas when he signed the check he did so with Ms own name. This circumstance would be a strong corroboration of the plaintiffs offer of proof, but in any view of the case, the burden of disproving the legal effect of the check by parol evidence rested upon, and was assumed by, the defendant, and the right to rebut such proof by other proof of the same character follows as a necessary consequence. Judgment reversed and venire de novo awarded.