Schurmeier v. Johnson

By the Court — Wilson, C. J. — At the proper time on the trial below the plaintiff’s counsel submitted to the Court five distinct propositions or requests — separately numbered — and asked the Court to charge the jury as therein requested. The Court took up these propositions and ruled upon them separately — denying or modifying each. The plaintiff’s counsel “excepted to said refusals and modifications and to said instructions as given.” As a preliminary question it is insisted that this exception is not sufficiently specific to be available to the plaintiff, and therefore that the correctness of the charge is not a question properly before the Court. It is doubtless incumbent on him who excepts to the ruling or charge of a. Court, to unmistakably point out the error complained of so that if committed inadvertently it may be corrected — nothing more than this can be required — and this we think was done in this case. The plaintiff’s counsel submitted to the Court several distinct legal propositions, the Court j>assed upon them separately, and the exception must be understood as applying to the ruling of the Court on each proposition. This is the fair import and meaning of the language used. See 1 N. Y. Practice, (Tif. & S.,) 582-3; Dunckel vs. Wiles, 11 N. Y., [322] (1 Ker.,) 420; Willard vs. Warren, 17 Wend., 259; Merritt vs. Seaman, 6 N. Y., (2 Seld.,) 175; Jones vs. Osgood, Id., 234. The defendants claim that there has been a former adjudication of the subject matter of this action, but they fail to sufficiently plead such former adjudication in their answer. A verdict in such ease' does not operate as an estoppel until it has received the sanction of the Court, and has passed into a judgment. 2 Smith's Leading Cases, 687; Donaldson vs. Jude, 2 Bibb., 60; 1 Greenleaf's Ev., Sec. 510; 1 Starkie's Ev., 297; Shaeffer vs. Kreitzer, 6 Bin., 430. ¥e now come to the consideration of the charge of the Court. The fifth proposition or request submitted by the plaintiff’s counsel was in the following language : “No verbal understandings or agreements made prior to or contemporaneous with the execution of these notes, can be considered by the jury for the purpose of varying or contradicting the terms of these notes.” The Court in refusing to charge as thus requested said, “This is correct as a general rule, but is not applicable to this case, if the jury find that the notes in suit were only delivered as security for the performance of the verbal contract as alleged by the defendants.” It is a rule well settled that in the absence of fraud or mistake, parol evidence is inadmissible at law or in equity to vary a written contract — such contract can not be varied, explained away or rendered ineffectual by parol proof of any conversation or stipulation prior to or contemporaneous with its execution. It is conclusively presumed to set forth the whole agreement of the parties, and the extent and manner of their agreement. Parkhurst vs. Van Cortland, 1 John. Ch., 282; 1 Greenleaf's Ev., Sec. 275. The Court below while it recognized the correctness of this general rule, seemed to think ^inapplicable in this case; but this has been otherwise and we think correctly decided in a case between these parties involving this very question. See Russell vs. Schurmeier, 9 Minn., 28. It is true that fraud vitiates and renders null a contract, and that parol evidence may be received to show the existence of such fraud; but in this case the charge ex [323] cepted to was given unqualifiedly and without any reference to the question of fraud, and it is not pretended that there was any surprise or mistake as to the terms of the notes or bond. This point is decisive of the case and a-enders unnecessary any further examination of the charge. The order áppealed from is reversed and new trial ordered.