Barghoorn v. Moore

• Decision Date: 05 May 1899
• Citation: 6 Idaho 531,57 P. 265
• Parties: BARGHOORN v. MOORE
• Court: Idaho Supreme Court

57 P. 265

6 Idaho 531

BARGHOORN v. MOORE

Supreme Court of Idaho

May 5, 1899

CONTRACT-PAROL EVIDENCE CONTRADICTING RECEIPT.-In a suit growing out of a contract of settlement which is not reduced to writing, the contract itself may be proven, although the evidence proving it contradicts recitals in a receipt connected with the transaction.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed. Costs of appeal awarded to the respondent.

C. J Orland, for Appellant.

Idaho Code, section 3465, provides how negotiable instruments may be transferred; those made payable to a person named or his order are payable to the written order of the payee; there can be but one construction of this section of the code relative to the transfer of negotiable paper in Idaho and that is, that the title does not pass to such paper made to order, except upon the written order of the payee. (Smalley v. Wight, 44 Me. 442, 69 Am. Dec. 112; Lancaster v. Baltzell, 7 Gill & J. 468, 28 Am. Dec 233; Foltier v. Schroeder, 19 La. Ann. 17, 92 Am. Dec. 521; Kohn v. Watkins, 26 Tex. 691, 40 Am. Rep. 336; Durein v. Maeser, 36 Kan. 441, 13 P. 797; Hedges v. Seely, 9 Barb. 215; Bilderback v. McConnell, 48 Mich. 345, 12 N.W. 195; Spinning v. Sullivan, 48 Mich. 5, 11 N.W. 758; Asgood v. Art, 17 F. 575.) The contract with reference to this entire transaction is all in writing, and being all one transaction occurring at the same time, should all be construed as one instrument and as constituting the contract. (Treadwill v. Archer, 76 N.Y. 197; Knowes v. Toone, 96 N.Y. 534; American G. & V. Co. v. Wood, 90 Me. 516, 38 A. 548; Keith v. Miller, 174 Ill. 64, 51 N.E. 151.)

Forney, Smith & Moore, for Respondent.

The rule that excludes parol evidence in contradiction of a written agreement has no application if the writing was not delivered as a present contract, and the effect of the delivery and the extent of the operation of the instrument, such as a promissory note, may be limited as between the original parties thereto by the conditions with which delivery is made. (Burke v. Dulancy, 153 U.S. 228, 14 S.Ct. 816; Corlies v. Howe, 11 Gray, 125, 71 Am. Dec. 693; Benton v. Martin, 52 N.Y. 570; Pennsylvania Ins. Co. v. Crane, 134 Mass. 56, 45 Am. Rep. 282; Westeman v. Krumweide, 30 Minn. 313, 15 N.W. 255; Juilliard v. Chaffee, 92 N.Y. 529.) Plaintiff's exhibit "E" is a receipt, and may be varied, explained or contradicted by parol. (Morse v. Rice, 36 Neb. 212, 54 N.W. 308; Groesbeck v. Marshall, 44 S.C. 538, 22 S.E. 743; Allen v. Tacoma Mill Co., 18 Wash. 216, 51 P. 372; Corlies v. Howe, 11 Gray, 125, 71 Am. Dec. 693; White v. Merrill, 32 Ill. 511; Galveston H. & A. Ry. Co. v. House, 4 Tex. Civ. App. 263, 23 S.W. 232; Bloomingdale v. Durrell & Co., 1 Idaho 33; Smith v. Caldwell, ante, p. 436, 55 P. 1065.) In the case of Allen v. Tacoma Mill Co., 18 Wash. 216, 51 P. 372, the defendant offered in evidence an instrument in the following words and form: "Received from T. M. Co. $ 988, being in full settlement of all claims and demands for all logs contained in rafts received and scaled by said company November 19th, and we hereby accept the scale of T. M. Co. on said logs, which is 227,128 feet. Hoods Canal Lumber Co., by A. J., Pres." When the evidence was all in, counsel for defendant below and appellant above asked for a peremptory instruction to the jury to return a verdict for the defendant on the ground that the instrument was a contract and could not be varied by parol. This was refused by the trial court; plaintiff had judgment and defendant appealed. The supreme court of Washington held that the instrument was nothing more nor less than a receipt and could be explained by parol evidence. Judgment was affirmed.

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

Plaintiff sued upon a promissory note executed to the Moscow National Bank of Moscow by defendant, for $ 1,500. The answer specifically denies the allegations of the complaint, and, as a second defense, avers that in November, 1893, H. K. Moore a son of the defendant, was indebted to the Moscow National Bank of Moscow in the sum of $ 9,048.50, secured by pledge of certain notes payable to said H. K. Moore, and secured by trust deed to certain real estate in Moscow, Latah county; that at said time defendant was the owner of a certain promissory note executed by the Idaho Builders' Supply Company (a corporation), H. R. Smith, C. H. Henderson, T. J. Taylor, C. A. Cochran, W. A. Lauder, and William Lauder, as original makers, payable to the order of the defendant, for the sum of $ 1,500, payable August 25, 1893, with interest from that date at the rate of one and one-quarter per cent per month until paid, secured by mortgage upon real estate in Moscow, Latah county; that, after the execution of said mortgage to defendant, M. J. Field's Company (a corporation) purchased said mortgaged premises; that in November, 1893, the said Moscow National Bank, through R. S. Browne, its president, entered into an agreement with the defendant whereby said indebtedness of H. K. Moore to it was canceled, in consideration of the pledged notes due to said H. K. Moore from different parties, aggregating $ 4,497, the note of defendant then executed to said bank for $ 3,000, due one year after date, and the note executed to defendant by the Idaho Builders' Supply Company and others (except the interest that had accrued thereon), and the said bank conveyed to defendant the real property held by it in trust as aforesaid; that at that time the president of said bank falsely and fraudulently, and with intent to deceive and defraud the defendant, represented to defendant that, by the regulations pertaining to national banks, said bank would not be able to carry said Idaho Builders' Supply Company's note among its bills receivable, for the reason that said note was past due, and then requested defendant to execute the note sued on, for the purpose that it might appear among the bills receivable of said bank, to its credit, in lieu of and in place of said note of the Idaho Builders' Supply Company transferred to said bank by the defendant, and for no other purpose; that she relied upon said representations, and believed them to be true, and executed the note sued on, that it might appear among the assets of said bank in lieu of said Idaho Builders' Supply Company, and for no other purpose;...