Harrington v. Samples

• Decision Date: 17 December 1886
• Citation: 36 Minn. 200
• Parties: RICHARD HARRINGTON <I>vs.</I> GEORGE F. SAMPLES.
• Court: Minnesota Supreme Court

36 Minn. 200

RICHARD HARRINGTON vs. GEORGE F. SAMPLES.

Supreme Court of Minnesota.

December 17, 1886.

Plaintiff brought this action in the district court for Houston county, to recover possession of personal property taken from him by defendant. The defendant justified the taking under a chattel mortgage of the property made by plaintiff to one Bogan, by whose assigns defendant was employed to take the property. This mortgage bore date January 12, 1883, and purported to secure the payment of two promissory notes of the same date, and other notes, which the answer alleges were due and unpaid when defendant took the property. In his reply the plaintiff alleged payment of the two notes of even date with the mortgage, and that the other notes secured by the mortgage were some of them given as collateral security for outstanding real-estate mortgage notes which were afterwards satisfied and paid by foreclosure of the real-estate mortgage, and the remaining chattel-mortgage note was given to indemnify the mortgagee against liability assumed in becoming surety for plaintiff on a note afterwards paid by plaintiff.

At the trial, before Farmer, J., the court excluded oral evidence to prove the averments of the reply, the mortgagee, Bogan, being dead. A verdict was directed for defendant, and the plaintiff appeals from the judgment.

James O'Brien, for appellant.

P. J. & E. H. Smalley, for respondent.

DICKINSON, J.

The question is here presented whether, in an action by a mortgagor of chattels to recover the property from the mortgagee, who had taken it under the mortgage, the mortgagor may show by parol evidence the facts that, although the mortgage in terms secures contemporary promissory notes of the mortgagor therein described, yet the mortgage and notes were really given for the purpose of securing a pre-existing debt of the mortgagor to the mortgagee, and also to indemnify the mortgagee on account of the making of certain notes for the accommodation of the mortgagor; and that the obligations of the mortgagor, for which the mortgage was intended as security, have been fully performed.

The rule against contradicting or varying the terms of a written instrument by parol evidence did not exclude the evidence offered for the purpose of showing the real consideration for which the mortgage security was given, and that it had been discharged by the performance of the obligations to secure which it had been executed. Chester v. Bank of Kingston, 16 N. Y. 336; Juilliard v. Chaffee, 92 N. Y. 529; Truscott v. King, 6 N. Y. 147, 161; McKinster v. Babcock, 26 N. Y. 378; Bank of Utica v. Finch, 3 Barb. Ch. 293, (49 Am. Dec. 175;) Walters v. Walters, 12 Ired. Law, 28, (55 Am. Dec. 401;) Crossman v. Fuller, 17 Pick. 171; Shirras v. Caig, 7 Cranch, 34, 50; Brick v. Brick, 98 U. S. 514. And see Jones v. Rahilly, 16 Minn. 283, (320;) Minor v. Shehan, 30 Minn. 419, (15 N. W. Rep. 687.) And this might be done in this action, although it was of a legal nature. Jones v....