Esch v. Hardy

Gileillan, C. J. This appeal involves the propriety of an order granting plaintiff’s motion for judgment on the pleadings. The suit is on a promissory note for $600.00, given to Michael Esch, deceased. The answer alleges [66] that, at the time of the execution of the note, Michael Esch ‘ ‘ requested the defendant to sell and deliver beef cattle to John Shultz and John Armour, butchers, and agreed with defendant that if he would sell and deliver to them beef cattle, as aforesaid, that he would advance, in payment therefor, $600.00; that, in accordance with said request, defendant agreed with said Esch to sell and deliver said cattle, as requested as aforesaid; in consideration of which said sum was advanced to the defendant, and the said note given as evidence of said advancement, and for no other consideration than the advancement of said money for the purpose aforesaid.” This is, in substance, an attempt to show that the note was not intended to create the obligation which it expresses, but only to be in the nature of a receipt for money advanced in payment of the cattle to be sold. Of course the note could not be thus varied by oral testimony. The agreement of Esch to advance the money, and that of defendant to sell and deliver the cattle, are presumed to be valid so far as they go. But, to make the answer good as a defence, it must appear that these agreements have the effect to qualify the note without resort to oral testimony ; and, to do that, it should appear that the note refers to them, or that they are in writing and refer to the note. The note, as stated in the complaint and admitted by the answer, is absolute, and makes no reference to any other agreement. The agreements, so far as they are set forth in the answer, do not provide for, nor refer to, the note. There is nothing in the answer to show but that, when produced, the note on the one side and the agreements on the other, if they are in writing, will appear to refer to entirely distinct and independent transactions. The answer does not show that the $40.00 claimed as a payment was paid on account of the note. Judgment affirmed.