Bank of Evansville v. Kurth

ViNJE, J. The conclusions reached by the court as to the issues and evidence render it necessary to consider only two of the assignments of error alleged by plaintiff, namely: (1) Did the court err in admitting testimony of conversations and discussions by and between the parties in reference to the sale of the lighting plant prior to the time of making the written contract? and (2) Did the court err in affirming the jury’s finding that plaintiff was not a holder in due course because it had actual notice of the contents of the written contract at the time the notes were bought? If these assignments of error are not well taken, then the questions of whether plaintiff had constructive notice of the con-' tents of the written contract because Pullen was an officer of both plaintiff and the Frost Engine Company, and whether there was a valid indorsement of the notes, become immaterial. It is urged that since a written contract of sale was executed after the conversations leading up to the sale were had, parol testimony was inadmissible as to the contents of those conversations. This would be so were the terms of the written contract sought to be changed by such testimony. But that is not the case here. Two defenses were pleaded. One of damages for fraud in inducing the defendant to purchase the plant, the other for breach of the warranty contained in the written contract. There was therefore no effort made to vary the terms of the written contract by parol. The court separately submitted these two defenses to the jury in questions 1 and 6. The conversations were competent on the issue of fraud involved in the first finding. On such an issue a wide range of evidence is permissible. Upon the question of whether Pullen had actual notice of the contents of the written contract at. the time the notes were purchased the evidence is not consistent. The notes [47] were purchased July 13, 1914. On November 27, 1914, Pullen wrote the defendant as follows: “As per agreement between you and the Erost Engine Company wbicb they left with us at the time we bought the notes against you, there was a payment due on the same November 20th; possibly this has escaped your notice. Trust on receipt of this letter you. will send us a draft and greatly oblige. ” On the stand Pullen claimed that the statement that the agreement was left at the time the notes were bought was a mistake of his stenographer, but the jury evidently did not believe that. And there was reason for their not so doing aside from the positive statement in the short letter quoted which was signed and no doubt read by Pullen at the time, and that reason is found in the fact that while plaintiff’s evidence was that the contract was not delivered to it until about the 23 d or 24th of October, one of the notes sued on contains these indorsements: Indorsement on principal. Balance due on principal. Sept. 21, 1914, $100 $500 Oct. 23, 1914, 100 , 400 Mr. Erost testified that he received these payments and turned them over to the plaintiff bank. There is nothing in the note to show that the principal could or was to he paid in’instalments. Naturally the bank would have made some inquiry into this matter when the first payment was made had it heen ignorant of the contents of the contract. But no inquiry seems to have been made. Pullen was president of the plaintiff bank and also a director of the Erost Engine Company. No doubt the jury thought he kept himself informed as to the business of both concerns, and that when he bought the notes for the bank he also received the agreement that went with them, as he says he did in his letter. It is difficult to understand how that definite statement in a letter of a few lines only, and one that involved the subject matter [48] of tbe agreement, could bave been tbe result of tbe mistake of a stenographer. On tbe whole evidence we are satisfied with tbe finding of tbe jury on tbe question, — especially since it also has tbe sanction of tbe trial court. It is evident that tbe notes and contract construed together, as they must be (Thorp v. Mindeman, 123 Wis. 149, 101 N. W. 411), rendered tbe notes nonnegotiable under our statute. Sub. (3), sec. 1675 — 1, Stats., requires a negotiable instrument to be payable “on demand or at a fixed or determinable future time.” Under tbe contract tbe time of payment of tbe notes was uncertain and might never occur if tbe plant failed to earn more than needed for repairs. By the Court. — Judgment affirmed.