Clark v. Ducheneau

BARTCH, J., having stated the case as above, delivered the opinion of the court. The main question presented in this case is whether 1 it was competent for the defendant to introduce evidence in support of the verbal contract, set up in his answer, showing a conditional delivery and satisfaction of the note, its execution being admitted. The appellant insists that the testimony respecting the parol agreement alleged to have been made previous to and at the time of the execution and delivery of the note was erroneously admitted, because, as is urged, all such agreements and understandings were merged in the written contract, whose terms could not be varied or contradicted by parol evidence. The answer to this contention is that the evidence in question was not introduced to vary or contradict the terms of the note or written instrument. Its execution was admitted. There was no attempt to change the language used in the writing. Its terms were not disputed, but it was claimed they were fully satisfied, and the obligation created thereby discharged, not by payment of the money, but by the the complete performance of a contract entered into by the payee and makers. The payee claimed that the note was given and accepted for money loaned, and that the stock was received and held as security for the loan. The defendant Cortez, one of the makers, claimed that the money for which the note was given was furnished under or in pursuance of a verbal contract to [103] purchase a certain amount of stock in the mine for the payee; that the note was executed and delivered as security for the performance of that agreement, to he surrendered upon the purchase, and delivery to the payee, of the stock; and that the stock had heen purchased and delivered, the agreement fully performed, and the note thereby satisfied. Such was the issue, and this included the object of the execution of the note. Under such an issue it was competent to offer and admit evidence to show what the purpose of the parties was in executing, delivering, and receiving the note; that the execution, delivery, and acceptance of the instrument were conditional, and made so by a separate oral agreement; and that the terms of such agreement had been fully performed, and the obligation appearing upon the face of the note satisfied and discharged. Proof of such an agreement, and satisfaction thereunder, does not vary or contradict the language of the instrument, but simply shows that the obligations patent upon its face no longer exist in fact. Undoubtedly, the evidence in dispute was admissible for such'purpose, so long as the .controversy was between the original parties to the transaction. If the note had gone into the hands of a third party, for value, ignorant of any conditional delivery, or of such separate agreement, the admissibility of such evidence would have presented a different question. The Supreme Court of California, in Howard v. Stratton, 64 Cal. 487, 2 Pac. 263, which was an action upon a promissory note, held that parol evidence was admissible to show that it was given to secure the performance of an agreement whereby the payee conveyed certain lands to the maker in consideration that the latter should support him during the residue of his life; and that the defendant had performed the conditions of the agreement. Mr. Jones, in his work on Evidence (volume 2, sec. 507), says: “As between the original parties, the conditional delivery of a note may be shown, as that it was [104] delivered in escrow. So it may be shown, as between the original parties, that the note bad been discharged by the performance of an oral agreement, or that the delivery was conditional upon a certain event.” In McFarland v. Sikes, 54 Conn. 250, 7 Atl. 408, 1 Am. St. Rep. 111, it was- held that proof that, at the time a note was executed and put.into the hands of the payee, an agreement was made that it should be returned to the- maker upon a certain day, if he should then demand it, did not contradict or attempt to vary the terms of the note, and that the agreement might be proven by parol evidence. So, in Benton v. Martin, 52 N. Y. 570, it was said: “Instruments not under seal may be delivered to the one to whom upon their .face they are made payable, or who by their terms is entitled to some interest or benefit under them, upon conditions the observance of which is essential to their validity. And the annexing of such conditions to the delivery is not an oral contradiction of the written obligation, though negotiable, as between the parties to it, or others having notice. It needs a delivery to make the obligation operative at all, and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions with which delivery is made.” In Peugh v. Davis, 96 U. S. 332, 24 L. Ed. 775, Mr. Justice Field, speaking for the court, said: “The rule which excludes parol testimony to contradict or vary a written instrument has reference to- the language used by the parties. It cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the object of the parties in executing and receiving the instrument.” Buchanon v. Adams, 49 N. J. Law, 636, 10 Atl. 662, 60 Am. Rep. 666; Wendlinger v. Smith, 75 Va. 309, 40 Am. Rep. 727; Crosman v. Fuller, 17 Pick. 171; Schindler v. Muhlheiser, 45 Conn. 153; Couch v. Meeker, 2 Conn. 302, 7 Am. Dec. 274; Davis v. Davis, 97 Mich. 419, 56 N. [105] W. 774; Moore v. Cross, 19 N. Y. 227, 75 Am. Dec. 326. From a review of the authorities, it thus clearly appears that the testimony in question was admissible for the purpose for which it was offered. An examination of that evidence, however, shows 2 a substantial conflict, respecting the existence of the alleged oral agreement, the conditional delivery of the note, and its satisfaction and discharge of the obligation, as per the terms of that agreement. Such being the case, and the evidence having been submitted to the jury, and the jury having passed upon it, we cannot disturb the verdict. It is no longer an open question in this jurisdiction that this court will not disturb a verdict based upon conflicting evidence, even though we may entertain a different view from that of the jury as to the preponderance of the proof. Nor, for like reasons, can we interfere with the finding of the jury on the question whether or not the defendant Ducheneau, in the transaction in controversy, acted as agent for the plaintiff. We find no reversible error in the record. The judgment is affirmed, with costs. BASKIN, C. J., and McCARTY, J., concur.