Johnson v. Zweigart

Opinion op the court by JUDGE O’REiAR — Reversing. This suit was brought by appellant, a lawyer, against' appellee, on an account for legal services, and for money paid thereabout. The services are not denied. The real defense, outside of the value of the services, is presented by a plea that the fees sued for were settled by a contract made [548] September 3, 1898, between the parties, by which it is claimed appellee bought from appellant his claim for fees and ñve certain promissory notes for $2,500 cash. There is no dispute that, at the time and place claimed by appellee, appellant transferred to him the notes and the claim for fees, or, which is the same, appellant agreed to release his claim for fees to get appellee to take the notes for $2,-500. Nor is there dispute that appellee at that time and place advanced to and for appellant the sum of $2,500 (about), and took possession of the notes, and took appellant’s receipt in full for the fees. The disputed question is, was that sale an absolute one, as appellee contends, or was it a loaning by appellee of the $2,500 to appellant, and a pledging of the notes to secure it, as appellant contends? Tf it was the latter, then the agreement evidenced by the receipt whereby appellant released or acquitted appellee of Ihe fees was without lawful consideration; that is, it was in its nature usurious, and not obligatory on appellant. The form of the transaction will not control. It is the fact that determines its character. So we must look to the whole transaction to determine what the parties intended to do, and what they did in this connection. The negotiations were begun, as is customary, by parol propositions and counter propositions, resulting in the agreement above stated. The parties then reduced to writing their agreement, as follows: “Maysville, Ky., September 3, 1898. Milton Johnson has sold and delivered to me, for the sum of $2,500 cash, the following notes, viz.: Wm. Woi’mald, mortgage, $1,000; J. A. Coughlin, mortgage, $100; Wesley Vicroy, personal note, $125; George Myall, personal note, $1,200, and policy of insurance; John McGraw, chat. Mortg., about $500. I am, however, after I have collected (net) on said notes the sum [549] of $2,500, and interest from this date, payable every six months, to return to said Johnson the unpaid notes, or cash if same be then collected. C. F. Zweigart.” “September 3, 1898. Received from C. F. Zweigart full settlement of attorney’s fees due me in cases of Martin v. Long & others, and Zweigart v. Lloyd & others. In full to date. Milton Johnson.” The question presented by this appeal is-whether appellee could, by his testimony, vary or dispute the writing above copied, and signed by him, without an allegation of fraud or mistake in its execution, and whether it was proper for the court to submit to the jury the question of the binding effect of the above-named writing. Appellee was allowed, over objections, to testify as to an oral sale, and the court submitted to the jury to decide as to whether such an oral sale was made. The court is of opinion that this question was improperly submitted to the jury. Where a series of conferences is consummated by a written document executed by the parties for the expression of their conclusions such writing must be regarded not only as expressing their final views, but as absorbing all other parol understandings, prior or contemporaneous. It must be conclusively presumed, in such a state of case, in the absence of an allegation of fraud or mistake in the execution of the paper, that the entire engagement of the parties is embraced in the writing; and, where its terms are not uncertain, oral testimony of previous colloquies between the parties that would tend in any instance to substitute a new or different contract for the one evidenced by the writing must be rejected. 2 Whart. Ev., section 1014; Crane v. Williamson (111 Ky., 271) (23 R., 689) (63 S. W., 610, 975); De Witt v. Berry, 134 U. S., 306, 10 Sup. Ct., 536, 33 L. Ed., 896. This rule, founded upon long experience, recognizes that the parties [550] to the agreement lias seen fit to culminate all their negotiations in a memorial not subject to the uncertainties of •forgetfulness or other similar infirmity, and have thereby agreed to adopt such memorial as the sole evidence of their contract. Expedience and experience alike sustain the wisdom of the rule. Applying the doctrine to the case at bar, the court should have excluded, under the state of the pleadings in this case, all that transpired between the parties that tended to substitute a different contract or understanding for the one evidenced by the writing. It should, on the contrary, have told the jury that the effect of this writing (the one first copied above) was a mortgage or pledge of the notes therein mentioned to secure to appellee the payment of $2,500,. and legal interest from September 3, 1898, and that the agreement to relinquish the fees, executed simultaneously and as a part of the other agreement, was without lawful consideration and was void. The sole question then left to the jury was — First, whether there was a special contract, as claimed by appellee, by which appellant agreed to collect the notes mentioned in his account at the rate claimed by appellee, and, second, if not, then the jury should have found such sum as, under the evidence,, was a reasonable compensation to appellant for the services rendered. The judgment is reversed, and cause remanded, with directions to award appellant a new trial under proceedings not inconsistent herewith. Petition for rehearing by appellee overruled.