La Grande Nat. Bank v. Blum

• Decision Date: 28 June 1894
• Citation: 37 P. 48,26 Or. 49
• Parties: LA GRANDE NAT. BANK v. BLUM et al.
• Court: Oregon Supreme Court

37 P. 48

26 Or. 49

LA GRANDE NAT. BANK v. BLUM et al.

Supreme Court of Oregon

June 28, 1894

Appeal from circuit court, Union county; Morton D. Clifford, Judge.

Action by the La Grande National Bank against Blum & Grandy. Judgement for plaintiff, and defendants appeal. Reversed.

Baker & Baker and Starr & Thomas, for appellants.

C.H. Finn and C.H. Carey, for respondent.

BEAN J.

This is an action on a promissory note for $1,346.66 executed and delivered to the plaintiff by defendants on February 12, 1892, payable three months after date. The complaint is in the usual form. The answer admits the execution and delivery of the note, but as a defense avers in substance, that, at the time of such execution and delivery, plaintiff was the owner and in possession of two certain promissory notes, for $600 each, on one O.N. Ramsay which it delivered to defendant Blum for collection, under an agreement that he would pay over the proceeds to plaintiff if collected, or, if unable to collect the notes, or any part thereof, he would return them; that the note in question was given to secure the performance of such agreement on Blum's part; and that he had performed the same. The reply denies the allegations of the answer, and a trial was had upon the issues thus made. The bill of exceptions discloses that, after plaintiff had given evidence tending to support the allegations of its complaint, "the defendants introduced evidence tending to support the allegations in their further and separate answer," and rested, whereupon the plaintiff moved the court "to strike all the evidence offered by defendants in support of the separate answer and defense, and to instruct the jury to bring in a verdict as prayed for in the complaint, on the ground that all the evidence offered is immaterial and incompetent, and the facts pleaded in the answer constitute no defense in this action." This motion was allowed, the evidence given by the defendants withdrawn, and the jury instructed not to consider it; and, the trial resulting in a verdict and judgment in favor of the plaintiff, the defendants appeal, assigning as error the ruling of the court in sustaining the motion above referred to.

The contention for the plaintiff is that the allegations of the answer, and the evidence tending to support it violated the well-settled rule of law that a written contract cannot be contradicted or varied by parol evidence. This rule is questioned. But the answer and evidence excluded did not contradict the terms of the promissory note sued on, but tended to show that it was delivered to...