McWhirt v. Mckee

The opinion of the court was delivered by Eingman, O. J.: The testimony showed that McWhirt received Bray’s note for collection; that he paid nothing for it, but did promise to account for and pay over the proceeds when collected; that the amount thereof was allowed him on the trial of his suit with Bray, whereby he obtained the full benefit of the value of the note, and that he had paid over nothing, and that Carney & Stevens knew nothing of McWhirt’s suit against Bray during its pendency, nor till long after it was decided; and that the note was regularly assigned to McWhirt for collection only. 1. costeactparo/evfd'eñce. I. It is insisted by plaintiff in error that it is inconsistent with the assignment of the note to permit oral evidence to be given that the assignment was only made for the purpose of collection; and in the argument and brief much learning and diligence is shown in the collection of authorities establishing the law that [418] oral testimony will not be received to contradict a written contract. We do not propose a review of these authorities, for in the view we take of this case they are not instructive. The oral testimony does not contradict the assignment; does not vary it; does not even explain it. The contract was outside of the assignment, and was parol in its character, and therefore could be proven by oral testimony. The contract was, that MeWhirt was to take the note, collect it, and when collected, pay it over; and all this was in parol. The “ assignment” formed no part of the contract, and was only made to assist MeWhirt in the performance of the obligation he took upon himself by reason of the contract. 2. Party ¡¡able for S“g?a“camoí of oi&nai'llty fouse. II. Another question raised by the plaintiff in error is, that if the note was assigned only for the purpose of collection, then Carney & Stevens have a risrht to a make the amount of the note off of Bray. When such a question arises we shall have no difficulty in deciding it; but in this case it is not presented. MeWhirt chose to consider the note as his own, and so treated it. It was used to pay his own debt. lie therefore is not in a position to raise the question. By his use of the note he made himself liable to Carney & Stevens for the money, and it is no matter to him whether Bray is also liable or not. It was his liability that the court was trying, not Bray’s. The proceeds of the note paid his debt to Bray. Why should not he account to Carney & Stevens for the money, as well under such circumstances, as if he had collected the note from Bray and used it to pay some other debt ? We cannot see wherein his liability is different in the one case from the other. [419] s. statute op saviug^oiauaes. III. One of the grounds of defense is the statute of limitations. "We think the law on this point was as favorably presented to the jury for the plaintiir in error, as a fair construction of our statutes would authorize. The facts of the case show the commencement and dismissal of two actions for the same cause, before the commencement of the present action. It will be seen that the action accrued in favor of Carney & Stevens against MeWhirt, April 10, 1866, and that such action was barred unless it comes within the saving clauses of section 23 of the civil code. On this point it is claimed that a voluntary dismissal without prejudice, is not such a “ failure in the action’-’ as is contemplated by the section referred to; but we cannot see upon what grounds-we can give such a construction to the section without doing violence- to its language and its obvious intent. Where a plaintiff dismisses his action he “ fails in such action,” and the failure .is “ otherwise than upon the merits.” It is not necessary to inquire what caused the failure in the action — why it was dismissed. It is sufficient that he failed to obtain the object of his suit, and that his failure was not upon the merits. It is such cases as are intended to be saved by the section. Nor do any of the authorities referred to by the plaintiff in error authorize any other construction than we have given to it. The instructions of the court below having been in accordance with the views herein indicated were correct, and the judgment is affirmed. All the Justices concurring.