Gage v. Phillips

• Decision Date: 16 March 1891
• Docket Number: 1,337.
• Citation: 26 P. 60,21 Nev. 150
• Parties: GAGE v. PHILLIPS.
• Court: Nevada Supreme Court

26 P. 60

21 Nev. 150

GAGE v. PHILLIPS.

No. 1,337.

Supreme Court of Nevada

March 16, 1891

Appeal from district court, Ormsby county; RICHARD RISING, Judge.

Trenmore Coffin and Wm. Woodburn, for appellant.

W. E F. Deal, for respondent.

MURPHY J.

This action was brought by W. S. Gage, as surviving partner of the firm composed of Clark P. Hubbell, J. C. Hampton, and W. S Gage, doing business under the firm name of J. C. Hampton & Co., to foreclose a mortgage executed by M. A. Phillips, the defendant, to J. C. Hampton & Co., of Virginia City, Nev dated on the 16th day of May, 1887. The complaint contains the usual allegations in actions of the kind. In her answer the defendant avers: "That on or about the ___ day of May, 1888, said defendant was the owner of a certain lot of furniture, carpets, bedding, stoves, and all necessary articles for the complete furnishing of a lodging-house, which was then in a lodging-house situated on B street, in Virginia City, Nev., *** and which said lot and lodging-house were then owned by said J. C. Hampton, now deceased, or by said firm of J. C. Hampton & Co. That on or about said ___ day of May, 1888, this defendant and said J. C. Hampton, now deceased, agreed together that said J. C. Hampton should take said furniture, bedding, carpets, stoves, and other articles, then in said lodging-house, in full satisfaction of the note and mortgage mentioned in plaintiff's complaint. That said J. C. Hampton, now deceased, then, either for himself, or for said J. C. Hampton & Co., did take said furniture and property in full satisfaction of said note and mortgage. That said J. C. Hampton died without satisfying said mortgage, or the record thereof. That said furniture and other property was of the reasonable worth and value of three thousand dollars." The plaintiff introduced his note and mortgage in evidence, and rested his case in chief. It appears from the transcript that in the year 1881 the defendant borrowed a large sum of money from J. C. Hampton & Co., giving as security for the payment thereof notes secured by mortgages on property situated in Virginia City and Carson City, Nev. That the furniture now in controversy was in the house in Virginia City, and has never been removed therefrom. That on the 16th day of May, 1887, J. C. Hampton, for the firm of J. C. Hampton & Co., had a settlement of accounts with the defendant, and it appears that on such settlement defendant owed the firm of J. C. Hampton & Co. about $12,000. The defendant gave to J. C. Hampton a deed to the Virginia City property; consideration, $1,000. She also executed and delivered to J. C. Hampton & Co., at the same time and place, and as a part of the same transaction, the note and mortgage sued upon, and a bill of sale of all the furniture in the Virginia City house. The defendant now swears that, at the time she signed the bill of sale, she did not know what she was signing, as she had no glasses with her, and, as she had borrowed $150 from Hampton on the day she signed the papers, she supposed she was signing a note for that amount. The defendant also testified, or attempted to, that she had a conversation and some correspondence with J. C. Hampton, in which he agreed to take the furniture in payment of the $2,000 indebtedness, and enter satisfaction of the mortgage sued upon. The letters claimed to have been received from Hampton could not be found, and the defendant called a Mrs. C. H. Robinson as a witness, and offered to prove by her the contents of the letters written by her for Mrs. Phillips to Hampton, and Hampton's letter in reply, which it appears that Mrs. Robinson had read to the defendant; to all of which counsel for the plaintiff objected, on the ground and for the reason that all the correspondence was had before the note and mortgage were given. The court sustained the objection, and the defendant excepted to the ruling. The testimony was inadmissible for the purpose offered. When parties reduce their contract to writing, all oral negotiations and agreements are merged in the writing, and the instrument must be treated as containing the whole contract, and parol proof is not admissible to alter its terms, or to show that, instead of being absolute, as it purports to be, it was in reality conditional, unless the party attacking the instrument can establish fraud or mistake in its execution. The case of Stewart v. Babbs, 120. Ind. 571, 22 N.E. 770, is directly in point on this case. In that case the defendants purchased land. They gave notes and mortgages to secure the payment of the purchase money. On the trial of the case the defendants gave testimony changing the terms of the deed and mortgage. On appeal, the supreme court said: "It is well settled, by a long line of decisions of this court, that, when the parties reduce their contract to writing, all oral negotiations and stipulations are merged therein." See, also, Wight v. Railroad Co., 16 B. Mon. 4; Fairbanks v. Metcalf, 8 Mass. 238; Ward v. Lewis, 4 Pick. 520; Worrall v. Munn, 5 N. Y. 238; Clark v. Gifford, 10 Wend. 313; Gilbert v. Insurance Co., 23 Wend. 45; De Witt v. Berry, 10 S.Ct. 536; Polhill v. Brown, (Ga.) 10 S.E. Rep. 921; Land Co. v. Dromgoole, (Ala.) 7 South. Rep. 444; Bruns v. Schreiber, (Minn.) 45 N.W. 861; Northwestern Fuel Co. v. Bruns, (N. D.) Id. 699; Hills v. Rix, (Minn.) 46 N.W. 297.

There is neither fraud nor mistake charged in the answer, and the attorney for the defendant stated in open court "that they did not claim that there was any fraud in the transactions." The mere statement of the defendant "that she did not know what she was signing, when she signed the bill of sale," is no excuse in law. In order to be of any benefit to her, she should have set out in her answer that the paper introduced in evidence was obtained by misrepresentations of its contents, and that the misrepresentations were false, and that she had exercised due diligence to guard against fraud; and, to excuse a want of due care and diligence in a case of this kind, the defendant should show that there was known trust and confidence between the parties to the instrument, and that the relationship of the parties was such as to justify the existence of such trust and confidence.

Defendant attempted to prove that in the spring of 1888, and prior to the death of Hampton, she had a conversation with him wherein he agreed to take the furniture in full payment of the amount due on the note and mortgage, to-wit, $2,000, and enter satisfaction of the same. To the introduction of this testimony plaintiff objected to the defendant testifying to any conversation had between herself and Hampton in relation to their business transaction, for the reason that the other party to the transaction was dead. The defendant admitted that all her dealings and conversations were with J. C. Hampton. The court sustained the objection, and this defendant claims to be error, and in support thereof rely upon the authority of the cases of Crane v. Gloster, 13 Nev. 279, and Vesey v. Benton, Id. 284. In the statute of 1864, p. 77, we had an act of the legislature defining who should and who should not be witnesses. Under that statute the decision in the case of Roney v. Buckland, 4 Nev. 45, was rendered, in which this court held: "When a surviving partner is sued for a loan for the use of the firm made to the deceased partner, and of the particulars of which the deceased partner only was cognizant, the plaintiff is not a competent witness in his own behalf." In 1869, at the time of the adoption of our civil practice act, (either by mistake or design,) the following paragraph was omitted from the act: "Except where the adverse party is dead, or where the opposite party shall be the administrator or executor." Under the act of 1869, the cases in 13 Nev. were decided, and each of these opinions were written by the judges under protest, and they did not hesitate to express their contempt of an act that required of them to affirm judgments, when such judgments had been obtained on the testimony of parties to a transaction, when the opposite parties, and the only persons who could testify or contradict their...