Fisher v. Briscoe

De Witt, J. The appellant urges that the motion for [132] judgment on the pleadings was error, for the reason that the court had theretofore taken a contrary view of the law in denying the motion to strike out the new matter in the first amended answer, which former view should constitute the law of the case on the motion for judgment on the pleadings. This argument is sufficiently answered in that different facts were presented in the second amended answer than in the first. In the first a written agreement to first exhaust the collateral was pleaded. In the second it was not. In the second amended answer, it appeared that this agreement was by parol, and, as respondent claims, varying and contradicting the terms of the written instrument, Exhibit A. In this view, the court, in the ruling on the motion to strike out, did not establish any law of the case controlling its action in the motion for judgment on the pleadings. The second amended answer was the pleading of the case as tried. The former one ceased to perform any further function as a pleading. (Barber v. Reynolds, 33 Cal. 501.) There is consequently no occasion here to revert to the action of the court, and appellant’s objection thereto in excluding evidence under the first amended answer. Newell v. Meyendorff, 9 Mont. 254; 18 Am. St. Rep. 746, is not in point. The court, in that case, examined a former pleading, which had been superseded by another, for one purpose only, and sought to make that purpose clear in the following language: “The old answer in the case at bar does not ‘perform any further function as a pleading,’ but we are not precluded from examining that answer, and the sustaining the demurrer thereto, for the purpose suggested infra.....We at this time refer to that ruling, and review the same, not as if an appeal had been taken therefrom to this court, but for the purpose of ascertaining whether the court in such decision, together with his latter reversal of his position in the same case, did not deprive defendant of a substantial right, and exclude him from his day in court. If that be true, defendant has a remedy.” No such purpose, as appears in Newell v. Meyendorff, impels us, in the case now before us, to review the ruling of the court in excluding evidence under a pleading which had been superseded by an amended one, on which the case was tried. [133] Appellant claims a failure of consideration for the notes, in that, quoting the answer, “the plaintiff afterwards wholly failed to cause said eighty-five thousand shares to be transferred and issued to this defendant, and said shares still remain on the books of the company in the name of the plaintiff;” but he goes on to admit “that the certificates representing said shares were deposited as collateral security in accordance with the terms of said agreement,” thus placing them under the control of the defendant, when he paid the notes, as was agreed! The last point which we will consider is the position taken by respondent, in which he was sustained by the lower court, that the alleged parol agreement to exhaust the collateral before seeking aid in an action at law, is pleading that which varies and contradicts the terms of a written instrument by parol evidence. The statute of this State is as follows; — “Sec. 628. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing, except” — (The exceptions are not here material.) Code Civ. Proc. Appellant meets this situation with two arguments, which we find some difficulty in reconciling. (1) He pleads that in conversation between appellant, respondent, and respondent’s attorney, the parties gave a contemporaneous construction to Exhibit A, to the effect that it meant that the collateral should be exhausted before an action was commenced, and that such contemporaneous construction should now obtain. (2) He argues that the parol agreement was independent and separate from the written instrument, and relating to different subject-matter, and therefore competent to be proved separately and by parol. If the first position be good, the second must fall, for if the parol agreement can be construed into the written instrument, the former was not independent and separate from the latter. Again, if the second position be sustained, the first is faulty, for if the parol agreement is separate and independent, and relating to different subject-matter, its intent could not be construed or imputed into the written instrument. [134] We are of opinion that the state of facts bere presented is one intended to be met by tbe statute above cited. If the agreement to exhaust collateral before suit brought be valid (and it may be doubted whether it would be a defense in this action, Creighton v. Vanderlip, 1 Mont. 400) it must be supported by a consideratiou. If it be independent and separate from the written contract, and relating to different subject-matter, we search in vain for a consideration, and the agreement must be void. It can be sustained only on the ground that its consideration is found in the main agreement. This being concluded, it follows that it was part of the principal contract, and not independent therefrom. Further argument to this effect is found in the fact that the agreement to first exhaust collateral was written upon the original notes, of which these in action are renewals. Again, the parol agreement was practically contemporaneous with the writings. The written agreement is the notes and the Exhibit A together, by which two writings it appears that the notes are absolute on their face, with no agreement for forbearance of suit. We cannot but conclude that the terms of the agreement were reduced to writing by the parties, by virtue of the notes and the Exhibit A, and that there can now be no evidence of those terms other than the writings themselves. The judgment of the District Court must therefore be affirmed. Blake, C. J., and Harwood, J., concur.