Crilly v. Gallice

• Decision Date: 03 December 1906
• Docket Number: 14.
• Parties: CRILLY v. GALLICE et al.
• Court: U.S. Court of Appeals — Third Circuit

148 F. 835

CRILLY v. GALLICE et al.

No. 14.

United States Court of Appeals, Third Circuit.

December 3, 1906

John G Johnson, for plaintiff in error.

James M. Beck, for defendant in error.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

DALLAS Circuit Judge.

An action was brought by Gallice & Co. against Francis J. Crilly upon seven overdue promissory notes, made by Du Vivier & Co. to the order of said Crilly, and by him indorsed to the order of said Gallice & Co. The defense was, that, by virtue of a certain written agreement, the failure of the makers to pay the notes had discharged the indorser. The agreement referred to related to these notes, and bore the same date. It was made by DuVivier & Co., of the first part, Gallice & Co., of the second part, and Francis J. Crilly, of the third part and, being in writing, it is to be taken and considered in connection with the indorsements. The two are to be construed together. Davis v. Brown, 94 U.S. 427, 24 L.Ed. 204. But the contract created by the indorsement and delivery of a negotiable note, even between the immediate parties to it, is itself a complete and perfect contract. It is a contract in writing, and is not open to contradiction, or susceptible of annulment, by a separate contemporaneous agreement, though likewise in writing unless, at least, the terms of the latter plainly disclose that the parties so intended. Martin v. Cole, 104 U.S. 37, 26 L.Ed. 647.

The agreement set up in this case recited that DuVivier & Co. were indebted to Gallice & Co. in the sum of $471,926, and that, at the request of Crilly, Gallice & Co. had agreed to compromise said indebtedness for the sum of $75,000, provided such sum should be paid in the manner thereinafter specified. Accordingly, DuVivier & Co. paid to Gallice & Co. $2,500 in cash, and delivered to them 29 promissory notes, each for $2,500, to the order of Francis J. Crilly, 'and by him indorsed to the parties of the second part, ' Gallice & Co.; and the contention is that, although the makers failed to pay these notes at maturity, and, indeed, because of such failure, Crilly, as indorser, was wholly relieved from liability. The final clause of the separate agreement, which is the one directly relied upon to support the contention, is as follows:

'(4) The parties of the second part hereby agree, upon the due payment by the parties of the first and third parts of all of the said notes and

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