Brooks v. Beach, 5592

• Decision Date: 22 December 1930
• Docket Number: 5592
• Citation: 50 Idaho 185,294 P. 505
• Parties: W. C. BROOKS, Respondent, v. N.E. BEACH, Appellant
• Court: Idaho Supreme Court

294 P. 505

50 Idaho 185

W. C. BROOKS, Respondent, v. N.E. BEACH, Appellant

No. 5592

Supreme Court of Idaho

December 22, 1930

BILLS AND NOTES-PAYMENT-PROOF-PAROL EVIDENCE.

1. In action on notes, court properly excluded testimony respecting payment of interest where such payment was admitted by complaint.

2. In action to recover money due, defendant under answer containing general denial may prove payment.

3. In action on notes, evidence offered under general denials of indebtedness respecting sale of collateral under oral agreement subsequent to written agreement regarding deposit of collateral held improperly excluded, even if technically at variance with allegations of affirmative defense (C. S sec. 6722).

4. Parol evidence is admissible to prove agreement executed after written instrument, though it changes or abrogates written contract.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Reversed and remanded; costs to appellant.

Action upon promissory notes. Judgment for plaintiff. Reversed and remanded.

Verner R. Clements and A. L. Morgan, for Appellant.

In an action to recover money due, the defendant under an answer containing a general denial may prove payment. (Marysville Development Co. v. Hargis, 41 Idaho 257 239 P. 522.)

Under a plea of payment evidence of payment in property other than money is admissible. (Phillips v. Gooch, 28 N.M 448, 214 P. 582.)

The evidence offered in this case does not show an attempt to vary the terms of a written contract by parol. The parol agreement was not an agreement made contemporaneously with any written instrument connected with the suit brought on the Beach notes. The oral agreement with reference to the collateral had been completely carried out. (Bartholomew v. Emerson-Brantingham Imp. Co., 68 Colo. 244, 187 P. 538.)

Cox & Martin, for Respondent, cite no authorities on points decided.

BUDGE, J. Givens, C. J., and Lee, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

This action was brought against appellant upon three promissory notes executed by appellant and made payable to the Security Investment Company, which company, before the maturity of the notes, sold and delivered them to respondent.

Appellant filed an amended answer to the complaint. The cause was tried to the court and jury, and after respondent had offered testimony to show that he was the owner of the notes, which were introduced in evidence, appellant tendered certain evidence in support of the allegations of his answer. All of the material evidence offered by appellant was stricken, and the court granted respondent's motion for an instructed verdict. This appeal is taken from the judgment entered on the verdict.

As a first affirmative defense appellant alleged that respondent is not a holder in due course of the notes sued upon; that no consideration was given for said notes, and that, before they were due and when respondent accepted them, he knew they had been executed without consideration and he took them with notice thereof and is not entitled to collection of the same.

As a second affirmative defense, appellant alleged that the notes have been fully paid and discharged by the Security Investment Company and H. J. Kressly delivering to respondent for payment in full of the notes, certain bonds of the Idaho Marble Company and a certain warrant of the Clearwater Highway District, payable to the Security Investment Company, all of which respondent received and accepted as payment in full of said promissory notes.

The several affirmative defenses were interposed to each of the three causes of action set out in the complaint, and the amended answer also contained general denials of indebtedness under the three promissory notes sued upon.

The first specification of error is predicated upon the action of the court in striking out all of the testimony of the witness Kressly as contained in his deposition, and in sustaining objections to questions propounded to said witness.

Under subdivisions a, b, c and d of specification of error No. 1, it is urged that the court erred in sustaining respondent's objections to questions asked the witness Kressly relating to the payment of interest on the notes and the indorsement of such payments on the notes. The payment of this interest is admitted by the complaint, and the court did not err in the respect complained of.

Subdivision e of specification of error No. 1 relates to the rulings of the court on questions propounded to the witness Kressly by which appellant was seeking to adduce testimony tending to show complete payment of the notes. This testimony was excluded on the theory that the evidence sought to be introduced did not tend to prove any of the issues involved.

It is respondent's contention that the only question under the issues made by the pleadings was whether or not certain collateral security placed with respondent had been accepted by him in full payment of the promissory notes, and that the testimony offered by appellant was incompetent as tending by parol to vary the terms of a written instrument under which respondent claims the collateral security was deposited with him.

There was no written agreement of the kind indicated above, offered or introduced in evidence at the time the court sustained respondent's objections to such questions. It is shown by a...