Reiniger v. Besley

ROSS, J. Suit by appellant on a note for $300, and interest, and for moneys loaned and money had and received. Answer admitted execution of note, and alleged that, at the time of its delivery, the appellant was negotiating with ap [163] pellee the purchase of some mines, and that the $300 evidenced by note was an advancement on the purchase price of .mines, providing the sale was effected, in which event the note was to be canceled and considered as fully paid and discharged. It is alleged that sale was consummated. Answer denies that appellant ever loaned appellee any moneys, and denies that appellee ever received any moneys for the use and benefit of appellant, and pleads accord and satisfaction, also the three-year statute of limitation as to count for money loaned and money had. Appellant replied to answer by moving that it be made more definite and certain by showing if contract as to the manner note was to be paid was oral or in writing, and, if the latter, that contract be set out in full and be produced for inspection; also moved that allegations of answer as to manner of payment be stricken; demurred specially to plea of payment, and generally to the whole answer; denied payment; and denied the agreement as set forth in answer as to manner payment was to be made. The case was tried to the court without a jury, and judg■ment entered against appellant. The appeal is from the judgment and the order overruling a motion for a new trial. Appellant makes seven assignments. The first is that the court erred in refusing, upon his motion, to require the appellee to set out in his answer whether the contract as to manner in which note was to be paid was in writing or oral. The contract alleged in the answer was one between the parties to this litigation, and therefore as m'uch within the knowledge of appellant as appellee. He therefore knew whether there was such a contract, and, if one, whether it was oral or written. "Where the mover is already in possession of the facts, ordinarily his motion to make more definite and certain will be refused. 31 Oyc. 646. The contract was as binding if made orally as if in writing. It was not in violation of the statute of frauds, nor subject to the plea of limitations. Besides, if it ever existed, under the allegations, it had been fully executed. The second, third and fourth assignments revolve around the same legal proposition, and that is that contemporaneous oral agreements may not be proved to vary, or alter, or contradict the terms of a written contract, especially a promis [164] sory note. That is the undoubted and well-settled law, in the absence of fraud or mistake. It seems to us that appellant has misconceived the defense. It is admitted that the note sued on was executed and delivered for the consideration named, to wit, $300; but it is alleged that it has been fully paid and discharged. That it was paid by a transfer to the payee of mining property instead of specie goes to the manner of payment. Obviously such a defense is a perfect one, and that it does not tend in the least to vary, or alter, or contradict the terms of the note is too plain to require notice. Fifth assignment: The appellee, in support of his defense of accord and satisfaction, testified that he was the owner of some stock in a mining company, and that he sold the stock to appellant for a very small price, and in settlement of all their differences. The negotiations of this transaction were carried on by telegrams that had been destroyed, and appellee, testifying as to the contents of his acceptance of appellant’s offer to buy, said the telegram that he sent was, “Will accept your offer with a clean sheet.” The appellant complains because his motion to.strike this evidence was refused. The testimony may have been somewhat indefinite, but it tended to sustain the plea of accord and satisfaction, and motion was properly refused. Appellant complains that the- court erred in refusing to admit in evidence a Western Union telegram offered by him. This telegram purports to be from appellee to appellant. It was the telegraphic copy, and not the original. Its authenticity was denied by appellee. “Where they [telegrams] are relied upon to establish contracts, they must be proved in the same manner as other writings.” Section 210, Jones on Evidence. The telegram was properly rejected without some evidence of its authorship. We have overlooked in this case what appears to us to be of serious importance to appellants, who rely, in this court, upon the reporter’s transcript as containing the evidence and the rulings, orders and other action of the trial court desired to be preserved for review. The reporter’s transcript is simply “approved” by the trial judge. This is not a compliance with the law. When there is no statement of facts [165] or bill of exceptions, but reliance is' had on the reporter’s transcript, great care should be execised to have it properly-authenticated by the trial' judge, for in it are contained not only the evidence, but the rulings, orders and other action of the court excepted to. - By an unwarranted and liberal indulgence in presumptions, “approved,” as herein used, might be construed as the equivalent of the certificate required by section 614, Bevised Statutes of 1913, but that is not the ordinary meaning of the word “approved.” The section referred to reads as follows: “When the statement of facts, bill of exceptions or reporter’s transcript is presented to the trial judge he shall certify thereto that the same is correct; or first amend it as it may require and then so certify it, and file it, together with the written statement or written statements, in the record of the case, within ten days after the same has been presented to him, unless both parties consent to a delay.” Of course what we have said as to the necessity of a certificate of the trial judge to the reporter’s transcript applies with equal force to the statement of facts and bill of exceptions. See sections 608, 610 and 614, Id. Judgment affirmed. FEANKLIN, O. J., and CUNNINGHAM, J., concur. NOTE.—On the question of contemporaneous agreements and their ■ breach as a defense to a promissory note, see note in 43 L. R. A. 449.