Bohn Manufacturing Co. v. Harrison

De Witt, J. The first matter for consideration in this case is whether it was an offer to vary or contradict the terms of a written instrument, when the defendant pleaded in his answer that it was understood between plaintiff and defendant that the acceptance of the bill of exchange should not be a waiver of the counterclaims which defendant alleged he then held against the plaintiff. It is our opinion that the pleading of this matter was not an offer of parol testimony to vary the terms of a written instrument. It is not the terms of the written instrument that are sought to be varied or contradicted by this evidence. Instead of that, it is simply a presumption, [298] which, it is claimed by the plaintiff, arose from the fact of executing the instrument that is sought to be varied by this parol testimony. The defendant concedes the written instrument, in all its force. He concedes his liability upon it. The plaintiff contends that the execution of this instrument — that is, the acceptance of the bill of exchange — was a waiver of defendant’s alleged counterclaims existing at that time. The written instrument itself does not, on its face, disclose such waiver, but the waiver, if any there were, is a result, or an inference, or a presumption from the' fact of^ereo-’uting the instrument, and the fact of the existence of tfuw counterclaims at the time, of such execution. Now, this parol evidence is offered to overthrow nothing in the instrument itself, but simply to combat an inference or presumption drawn from the instrument and other facts. This presumption is not a written instrument, nor contained in the terms of a written instrument. Therefore to overthrow it is not varying the terms of the instrument. Let us fully concede, for the purpose of this decision, the position urged by respondent — that the acceptance of the draft, in itself, and unexplained, is a waiver of the counterclaims of the person accepting the draft. (See cases cited by respondent.) But whatever legal presumption might arise from the acceptance of the draft, it is only a presumption arising from the conduct of the parties, and disappears before the positive allegation, admitted by the demurrer to be true, that the parties intended that no such presumption should arise from said acts; that is, it is pleaded that the parties intended that the acceptance of the drafts should not be a waiver of the counterclaims. It was perfectly competent for them to entertain this intention between themselves at the time of drawing and accepting the draft, and there are no third parties, as innocent purchasers, now interested, who have been misled by the actions of the plaintiff and defendant in the case. In the cases cited by the respondent in its brief, we find one of two situations: Either that the commercial paper in question was given expressly as a settlement of mutual accounts, and understood and agreed to be such settlement, or, as in the other cases, of which Reid v. Field, 83 Va. 26, is a good example, the case was that it was not pleaded, or undertaken to [299] be shown, that there was any understanding or intention between the parties that the giving of the commercial paper should, expressly, not be a waiver of the counterclaim. Therefore, the authorities presented by respondent are not in point upon the proposition raised by these pleadings. Fisher v. Briscoe, 10 Mont. 133, also, is not in point. The parol agreement there attempted to be brought into the case was one to defeat the payment of the note at the time when it was sued upon. But, as shown above, the parol matter in this case was not a defense against the note, and was not offered in resistance of the payment of the note. It was simply an agreement and understanding that the parties did not intend that there should arise, from the fact of accepting the draft, a presumption of waiver of the counterclaims. We are therefore of opinion .that whatever presumption of waiver could be held to arise from an unexplained acceptance of the draft, such presumption did not here arise, because the acceptance is not here unexplained. On the other hand, the parties expressly agreed among themselves that that presumption should not arise, and that the fact which it presumed was not true. Of course, the treatment of this case is upon the'ground that all the allegations of the answer are confessed as true upon the demurrer. It therefore appears to us that a defense was set up by the answer, and that the demurrer should not have been sustained. In the view that we take of the competency of the allegations discussed, the court erred in sustaining the motion to strike them out. As a consequence, if they had. been left in the complaint, the counterclaims would have been well pleaded, showing, as they did, their existence and their nonwaiver. Consequently, if the motion to strike out had been denied, as we think it should have been, the demurrer should have been overruled. The judgment is reversed and the case remanded to the district court, with directions to proceed in accordance with these views. Reversed. Pemberton, C. J., and Harwood, J., concur.