Gardner v. Gardner

• Decision Date: 21 June 1923
• Docket Number: No. 5672.,5672.
• Parties: GARDNER v. GARDNER.
• Court: Rhode Island Supreme Court

121 A. 385

GARDNER

v. GARDNER.

No. 5672.

Supreme Court of Rhode Island.

June 21, 1923.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Assumpsit by Samuel T. Gardner, as executor of the estate of Alfred S. Gardner, deceased, against Ezekiel E. Gardner. Judgment for defendant, and plaintiff excepts. Exceptions sustained in part, and overruled in part, and case remitted for new trial.

Russell W. Richmond, of Providence, for plaintiff.

Waterman & Greenlaw and Alfred H. Lake, all of Providence, for defendant.

RATHBUN, J. This is an action of assumpsit, brought by the plaintiff in his capacity as executor of the will of Alfred S. Gardner, deceased, to recover from the defendant on his promissory note, which was found among the papers of the deceased. The trial in the superior court resulted in a verdict for the defendant The case is before us on the plaintiff's exceptions to the rulings of the trial court, made in the course of the trial, including an exception to the refusal of said justice to direct a verdict for the plaintiff. The note was written by the defendant and is as follows:

"Providence, R. I., January 15, 1918. "For value received I promise to pay Alfred S. Gardner five thousand dollars ($5,000.00), three years from the above date, with interest at 7 per cent. This obligation to apply as a lien on any property that I may have, or holding whatsoever. Ezekiel E. Gardner."

To the note was attached revenue stamps of the denomination of $1. On the day following the date of the note, and at the expiration of each six months thereafter, up to and including January 16, 1920, the defendant paid to Alfred S. Gardner interest for six months in advance on the note, and entered with his own hand the interest payment on the back of the note.

The court, overruling the plaintiff's objection, permitted the defendant to testify that his uncle, said Alfred S. Gardner, gave him $5,000, without any consideration other than the defendant's promise to pay his uncle during the lifetime of the latter an allowance equal to the interest on $5,000 at 7 per cent.; that the note was given for the purpose of concealing the real transaction from the other relatives of the payee, and for the purpose of being used as a memorandum of the alleged agreement to pay said allowance. The plaintiff excepted, and now contends that the admission of the above testimony violated the rule that the terms of a written contract cannot be varied by parol evidence. We think the evidence was clearly admissible. The defendant was not attempting to prove that an instrument, originally valid, was to became invalid at the happening of a certain contingency. The defendant was contending that a contract to repay the principal was never made, and that he never agreed to pay $5,000 to his uncle. In Barrett v. Davis, 104 Mo. at page 559, 16 S. W. at page 379, the court said:

"Facts going to show that a writing never acquired original vitality as a contract are not considered as infringing the rule of evidence excluding verbal contradiction of writings."

17 Cyc. 642, states the rule as follows:

"The rules excluding parol evidence have no place in any inquiry in which the court has not got before it some ascertained paper beyond question binding and of full effect."

In the cases relied upon by the plaintiff, the attempt was made to show that the parties had an oral understanding that a note, which was valid and binding at the time it was made, should become invalid at the happening of a certain contingency.

The defendant further contends that there was no consideration for a promise to pay $5,000. He admits...