Loeb v. Flannery

Mr. Presiding Justice Smith delivered the opinion of the court. The sole question presented by the record, as stated by the attorneys for the respective parties, is whether the trial court erred in refusing to admit the evidence offered by appellant under his plea of want of consideration for the promise contained in the instrument in suit, and in directing a verdict in favor of appellee. If the proffered evidence was properly excluded by the trial court there was no other course left open to the court than to direct a verdict in favor of appellee, for no defense to the case made by appellee was shown. Hence the sole question presented for consideration is the propriety of the action of the court in refusing to admit proof of the facts sought to be introduced by appellant before the jury. The first contention of appellant is that oral evidence is admissible to contradict or explain a receipt, and to contradict an instrument in writing for the payment of money as to the consideration for which it is given. This contention is sound, we think, and we do not find it controverted by attorneys for appellee, for they say in their argument filed herein that, “If appellant had offered to show that the sum of $1,000 had not in fact been received by him on the 6th of November, 1902, from appellee, we have no hesitancy in saying that snch proof would have,been competent, and if made would have established the truth of the plea of want of consideration, and have constituted a complete defense to the action.” This brings us to the question whether the evidence offered by appellant tends to show a want of consideration for the undertaking contained in the instrument sued on to hold the $1,000 for appellee and to return the same to him upon ten days7 notice in writing. If the evidence tendered shows a want of consideration, it is concededly admissible. If, on the other hand, it does not tend to show a want of consideration for the agreement, but tends to contradict the terms of the contract, the evidence was clearly inadmissible. We are, therefore, required to analyze the evidence excluded for the purpose of determining what it tends to prove. The evidence shows without controversy that at the time of the execution of the writing sued on, appellee delivered to appellant $1,000. The offer of appellant does not question this fact, but admits it. The testimony of appellant shows he received the money. The instrument signed by appellant acknowledges the receipt of the money and expresses the contract between the parties with reference to the money. It clearly appears from the instrument itself that the receipt of the money was the consideration for the promise to hold it, and return it upon ten days7 notice in writing. There was no other consideration given or received, and no other document executed at that interview between the parties. It is, therefore, conclusively proved and admitted that appellant on November 6, 1902, received from appellee $1,000 and that appellant immediately thereafter signed and delivered the instrument, and that the recital of the instrument— “Received of Jacob W. Loeb one thousand dollars”— is strictly in accordance with the truth. How then can it be said or claimed that appellant’s evidence, or the proof of the facts sought to be introduced on behalf of appellant by the offer made on the trial, tended to contradict or overthrow the receipt of the money by appellant? In our opinion it does not. The fact sought to be established that appellant was acting as attorney for Ellen Maguire, and that the $1,000 paid to him on November 6, 1902, was not paid for his account or benefit, but for the account of his client, and as a part payment in pursuance of a contract between her and appellee, in no wise tends to disprove that the $1,000 had been received by appellant. With reference to the defense of want of consideration it was wholly immaterial whether the money paid appellant was received by him for his account, or for the account of his client, Maguire; if for the latter it still formed ample consideration for the promise contained in his personal undertaking. For, it is not necessary, in order that there be a consideration for appellant’s undertaking, that the consideration therefor move to appellant or be for his benefit. Even though the consideration paid appellant was for the benefit and account of Ellen Maguire, his principal, it was sufficient to support the undertaking executed by appellant in his own name. Hypes v. Griffin, 89 Ill. 134; Scanlan v. Keith, 102 id. 634; Powers v. Briggs, 79 id. 493; Bingham v. Kimball, 33 Ind. 184; Crum v. Boyd, 9 Ind. 289; Stackpole v. Arnold, 11 Mass. 27. The foregoing authorities and many others establish the inadmissibility of the testimony offered upon this theory of the defense for which appellant contends. They conclusively establish the law to be that, having signed the instrument in suit in his own name after receiving from appellee the $1,000 therein recited, appellant cannot be permitted to assert that such consideration was received by him for the benefit and account of Ellen Maguire and as her attorney, and not for his own benefit, and that there was therefore no consideration' for Ms promise as expressed in the instrument. The proposed proof would have established the consideration, not the want of it. It was wholly immaterial, therefore, to the defense set up in the plea of want of consideration. The instrument here involved is one of that class of documents which have often been before the courts for adjudication. It is both a receipt and a contract, and calls for the application of the rules of evidence applicable to both, and hence, some confusion in some decisions of courts has arisen with reference to them. In as far as it is a receipt for money, it is peculiarly open to contradictory evidence. “It is only prima facie evidence either that the sum stated has been paid, or that any sum whatever was paid. It is in fact not regarded as a contract, and hardly as an instrument at all, and has but little more force than the oral admission of the party receiving. It often happens that a paper which contains a receipt, or recites the receiving of money or of goods, contains also terms, conditions and agreements or assignments. Such an instrument, as to everything but the receipt, is no more to be affected by extrinsic evidence than if it did not contain the receipt. 8 * * From general expressions as to the rules governing a receipt in many opinions, it would seem that some courts have overlooked this dual character of which a receipt is capable.” Ramsdell v. Clark, 20 Mont. 103 (49 Pac. 591). For this reason, perhaps, appellant’s argument proceeds upon the assumption that the proffered evidence tended to contradict that portion of the instrument in sMt which is in the nature of a receipt and therefore open to oral contradiction, whereas, in truth and in fact, it has no such tendency, but it was really sought by the evidence to vary and contradict the contractual terms and provisions of the instrument. We have above referred to the cases of Hypes v. Griffin; Scanlan v. Keith; Powers v. Briggs; Crum v. Boyd; Stackpole v. Arnold, and other cases. In Andrus v. Mann, 92 Ill. 40, the court had before it an instrument of like character which contained a receipt for an organ followed by terms and provisions constituting a contract of lease. The trial court permitted appellee in that case to introduce oral evidence to prove that the agreement between the parties was for a sale and not a lease of the organ. In reversing the judgment solely on the ground of the error in admitting this evidence, the court said: “There is no rule more familiar or of more uniform application than, parties cannot introduce verbal evidence to contradict, change or vary written contracts on a trial at law. It is a maxim that all written contracts must speak for themselves, and their meaning or interpretation cannot be changed by verbal testimony. The books abound in decisions announcing the rule, and it is announced and applied in every case in this court. The rule is so elementary that we regard it unnecessary to refer to adjudged cases in its support.” The court then proceeds in its opinion with a conclusive argument upon the inadmissibility of the evidence, which is as applicable to the case now before us as it was to the case in which it was written. Schultz v. Plankinton Bank, 141 Ill. 116; Ryan v. Cooke, 172 id. 302; Fowler v. Richardson, 32 Ill. App. 252; Hossack v. Moody, 39 Ill. App. 17; First Nat. Bank of Litchfield v. Southworth, 117 id. 143 (affirmed in 215 Ill. 640); Egleston v. Knickerbocker, 6 Barb. 458; Henry v. Henry, 11 Ind. 236; Blakely v. Bennecke, 59 Mo. 193; Wykoff v. Irvine, 6 Minn. 344; and Holcomb-Lobb Co. v. Kaufman, 29 Ky. L. R. 1006, 96 S. W. 813, all involved this principle as applied to similar contracts. The above cited authorities clearly point out the grounds of discrimination between the right of a party to contradict or explain, by parol evidence, a document which is nothing but a receipt, and the absence of such right in cases where the instrument is both a receipt and a contract. It will he found, we think, upon examination of the authorities relied on by appellant, that in each instance the proof sought to be introduced tended to show that the consideration recited had never been received by the defendant, or that the proof was offered for the purpose of showing that there was a conditional delivery of the instrument, which condition had not been complied with, and that therefore the instrument was never operative. These elements are not present in the case at bar. We think the proffered evidence was properly rejected by the court. Finding no error in the record the judgment of the Superior Court is affirmed. Affirmed.