Dickson v. Harris

• Decision Date: 22 September 1883
• Citation: 13 N.W. 335,60 Iowa 727
• Parties: DICKSON v. HARRIS
• Court: Iowa Supreme Court

13 N.W. 335

60 Iowa 727

DICKSON v. HARRIS

Supreme Court of Iowa, Dubuque

September 22, 1883

Appeal from Washington Circuit Court.

THE plaintiff brings this action to recover of the defendant the amount of a promissory note, executed by the defendant to the plaintiff, for the sum of $ 200, dated December 21, 1870 payable twelve months after date, with interest at eight per cent, and upon which are several indorsements of credits aggregating $ 136.

The defendant answered, admitting the execution of the note, and alleging that on the day of its execution the plaintiff, on his own motion, gave the defendant $ 200, which he requested the defendant to carry from Ohio to Washington, Iowa and apply it in discharge of a judgment against plaintiff's son, and defendant took the money, promising that he would so apply it; that said note was executed as a memorandum to show that said money had been so received, and as a guaranty that it should be so applied; that defendant took said money to Washington, and applied it as requested, in payment of said judgment, and that, by his so applying it immediately after the execution of said note, he fully satisfied the same. The defendant for answer says that, near the time of the date of said note, he paid for the plaintiff, at his instance and request, $ 200 on a judgment against the plaintiff's son which should be applied in payment of the note and as an offset thereto. The cause was tried to a jury, which was directed by the court to return a verdict for the plaintiff. The defendant appeals.

AFFIRMED.

McJunkin & Henderson and E. G. Wilson, for appellant.

Jackson Roberts, for appellee.

OPINION

DAY, J.

I.

The execution of the note, and the receipt by the defendant of $ 200 from the plaintiff, at the time the note was executed are admitted. The plaintiff's son is the defendant's son-in-law. The defendant's counsel produced the defendant as a witness, and proposed to prove by him, that the plaintiff, having been informed by the defendant of the plaintiff's son's necessities, gave the defendant, at the time of the execution of the note in suit, $ 200, for which the note was executed, and requested the defendant to apply that amount of money for the plaintiff, in discharge of a debt against the plaintiff's son, in Iowa; that witness took the money and brought it to Iowa and applied it as requested in payment of a judgment against the plaintiff's son; and that the note was given upon this consideration alone, and was not intended, between the parties, to operate as a note, but merely as a memorandum of the amount of money received, and that it was agreed at the time the note was made that the payment of the money in the way agreed upon should be a satisfaction of the note. This proffered testimony was rejected. It is to be observed that the defendant does not allege in his answer, nor propose to show, that the note never had any legal existence, by reason of fraud, accident, or mistake, or for want of due execution and delivery, or for any illegality in the subject-matter. The defendant, whilst admitting that he executed the note with full knowledge of its terms, and of every fact connected with it, seeks, by parol contemporaneous testimony, to transform the note into a mere memorandum or receipt. That he cannot do this seems to us almost too plain for discussion. In the 2d volume of Parsons on Notes and Bills, page 501, it is said: "If the defendant endeavors to prove an oral bargain between himself and the plaintiff, which differs in its terms from the written note, it will then be remembered that it is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsing of a bill or note, cannot be permitted to vary, qualify, or contradict, to add to, or subtract from, the absolute terms of the written contract. The exceptions to this rule are cases of fraud, illegality, or want of consideration." On page 507, of the same work, it is said: "Parol evidence of a contemporaneous agreement that a note in the usual form was intended to stand in place of a receipt, and that the sum for which it was given was intended as payment of a prior debt of the defendant's father, is not admissible." On page 525, of the same work, is this language: "An instrument which has the form of a promissory note, but was never executed or received as such, may be shown by parol to represent a different bargain from the one its terms import. But in a note in the usual form, and regularly delivered, parol evidence cannot properly be...