Schmittler v. Simon

• Decision Date: 23 April 1889
• Citation: 21 N.E. 162,114 N.Y. 176
• Parties: SCHMITTLER v. SIMON.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 176

21 N.E. 162

SCHMITTLER

v.SIMON.¹

Court of Appeals of New York, Second Division.

April 23, 1889.

Appeal from supreme court, general term, First department.

Action by Mary Schmittler against Adam Simon, as an acceptor of a draft of which the following is a copy: ‘New York, February 26, 1877. Mr. Adam Simon, executor, will please pay to Johannes Schmittler, or his order, on the first day of July, which will be the year 1879, the sum of nine hundred doll., with seven per cent. interest, to be paid, besides the amount, yearly, July month, and charge the amount against me, and of my mother's estate. WM. J. SCHARIN.’ Across the face was written: ‘Accept, Adam Simon, Executor,’ and indorsed: ‘Pay to the order of Mary Schmittler the amount of note. JOHANNES SCHMITTLER.’ A trial resulted in a judgment of nonsuit, which was affirmed by the general term, (29 Hun, 480, mem.,) but reversed by the court of appeals, (5 N. E. Rep. 452.) A second trial resulted in a verdict and judgment for the plaintiff for the amount of the draft, which was affirmed by the general term, (43 Hun, 640, mem.,) and the defendant appeals.

VANN, J., dissenting.

Charles C. Smith, for appellant.

Winchester Hall, for respondent.

BRADLEY, J.

Upon the review of a former trial, where the question presented had relation only to the legal import of the terms of the instrument in question, it was held that it was a bill of exchange, and that the defendant was, upon his acceptance, personally liable to the plaintiff as indorsee of the paper. 101 N. Y. 554, 5 N. E. Rep. 452. This is the review of the succeeding trial, and the admissibility of evidence offered by the defendant is now the subject of inquiry. The defendant was executor of the will of Regina Scharen, deceased. She was the mother of the drawer of the draft. There is some evidence tending to prove that the draft was taken by the payee for the plaintiff, who was his wife, or with a view to transfer it to her. The defendant offered evidence tending to prove that it was understood by the plaintiff and her husband that the draft should be taken upon the security of the drawer's interest in the estate of his mother; that when the draft was drawn it was understood between the drawer, payee, and the plaintiff that it was to be paid out of such interest in the estate; also, that the defendant then said, in the presence of all those parties, that he would not accept the draft, or become liable upon it personally, and that it was then agreed or said between them that the defendant would accept the draft in his capacitly as executor, to be paid only out of the drawer's interest in his mother's estate. This evidence was offered in various forms on inquiry, and, upon objection of plaintiff's counsel, was excluded, and exceptions taken The general rule is that when an agreement is reduced to writing, it, as between the parties, is deemed to merge and overcome all prior or contemporaneous negotiations and declarations upon the subject, and that no oral evidence is admissible to vary, explain, or contradict its terms. But it may be that it would have been admissible for the defendant to prove, if he could, that his acceptance was not to take effect was such until a certain event, then in the future, and that when the payee and the plaintiff received it they were advised of an arrangement to that effect. Seymour v. Cowing, *40 N. Y. 532, 4 Abb. Dec. 200; Benton v. Martin, 52 N. Y. 570;Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. Rep. 127; Wilson v. Powers, 131 Mass. 539; Wallis v. Littell, 11 C. B. (N. S.) 369. In this connection reference may also be made to the proposition that the purpose for which a written contract is made may rest in a collateral oral arrangement, which may be shown, to the effect that the design of it is different from that which its terms alone may indicate. Grierson v. Mason, 60 N. Y. 394;Juillard v. Chaffee, 92 N. Y. 529;Chapin v. Dobson, 78 N. Y. 74. These propositions are not applicable when the conclusion is required that the writing contains the final consummation of the entire agreement between the parties. While the evidence so offered may bear the construction that there was an understanding between the parties to the draft that the liability of the defendant on the acceptance was dependent upon an ascertained interest of the drawer in the estate of his mother, and in that event to be incurred to the extent only of such interest, not exceeding the amount of the draft, we think such evidence cannot fairly be construed as tending to prove a collateral agreement suspending the inception or operation of the acceptance until some future event, or as tending to show that it was made for a purpose independent of the import of its terms, within the rule before mentioned, and therefore it is unnecessary to consider the question of the applicability of those propositions to negotiable paper.

The consideration of a contract, in whatever form it may have been, may, as between the immediate parties to it, be the subject of inquiry, and, in an action by the payee upon a note made by an executor or administrator, on account of a debt which his testator or intestate left unpaid, such fact, and that the assets of the estate were insufficient to pay the note, may be shown as a defense, wholly or partially, as it may appear that there was an entire or partial want of assets to pay the debt represented by the note. Bank v. Topping, 9 Wend. 273, 13 Wend. 557. The question in such case is one of consideration for the promise, evidenced by the note, supposed to have been founded wholly upon the assets of the estate which the maker represented. While the maker and payee of a promissory note, and the drawer and acceptor of a bill of exchange, are immediate parties to the paper, that relation of privity does not exist between the payee and acceptor, and, as between them alone, the want of consideration is no defense; but the acceptor, for the purpose of his defense in that respect, must go further, and prove that there was no consideration as between the drawer and payee. There was no purpose indicated in the evidence offered to do that, and therefore it does not seem to have been competent for that purpose.

The question now is whether the evidence so offered was admissible for any purpose. On the former review, in referring to the contention that the draft was drawn upon a specific fund, the court said: ‘Considering the question, as we are compelled to do, from the language of the instrument alone, we are unable to agree to the interpretation that the draft was payable only from a particular fund,’-and added: ‘While the point is not free from doubt, we think a reasonable construction of the draft favors the conclusion that it [the fund] is mentioned only as a source of reimbursement;’ and, ‘if the language of the paper could be considered at all ambiguous, it was the duty of the defendant to limit his liability by apt words of acceptance when it was presented to him, but, as it is, he has unqualifiedly promised to pay a fixed and definite sum at a specified time, and we think should be held to the contract which other parties were authorized, by his acceptance, to infer he intended to make.’ It does not appear what view the court may have taken of the admissibility of evidence of the fact, and of the fact itself, if it had then appeared, that the payee and the plaintiff, when they received the draft, had been advised that it was drawn and accepted to be paid out of the drawer's interest represented by the defendant as executor. The question there was solely one of construction of the instrument as represented by its terms, and all that the court there necessarily determined was that it did not appear by the terms of the draft that it was drawn upon a particular fund. That character would not be given to the draft upon doubtful construction, as against the plaintiff, who was...