Hubbard v. Marshall
| Decision Date | 21 September 1880 |
| Citation | 6 N.W. 497,50 Wis. 322 |
| Parties | HUBBARD v. MARSHALL |
| Court | Wisconsin Supreme Court |
Argued August 31, 1880
APPEAL from the Circuit Court for Brown County.
Action on two promissory notes, each for $ 2,517.58 and ten per cent. interest, made by the defendant to the plaintiff. Deducting indorsements, there appeared to be due on the notes by their terms about $ 5,500, at the date of the trial. The facts necessary to an understanding of the question determined by this court, are as follows: The plaintiff, one Gillen, and one Munroe, entered into a contract in writing under seal, by which the plaintiff sold to Gillen and Munroe the timber on certain lands, and agreed to convey to them certain other lands, all for the sum of $ 9,808. The plaintiff was to execute a conveyance of the lands when said sum should be fully paid. The contract contains stipulations concerning the times of payment, the payment of taxes, and the effect of a default; and also for the security of the plaintiff. The defendant afterwards acquired the rights of Gillen and Munroe under the contract. Over a year later the plaintiff sold, assigned and delivered to the defendant, for the agreed consideration of $ 10,058.30, certain notes and mortgages which he held against said Munroe, and all his interest in the abovementioned contract with Gillen and Munroe, except as to one parcel of the land which he had covenanted to convey to them. The assignment of these choses in action is in writing under seal, executed by the plaintiff alone. The instrument states the consideration, and also contains stipulations for the security of the plaintiff, and the effect of a default by the defendant to make the payments as therein specified.
In execution of such agreement the defendant made and delivered to the plaintiff his three promissory notes, each for the same sum, and paid the balance of the consideration in cash. He has since paid one of said notes, and the other two are the notes in suit. The defendant alleges in substance, in his answer, that when such agreement was made between the parties the plaintiff represented that there were 3,000,000 feet of pine lumber on the lands described in the agreement, and that he agreed to allow the defendant at the rate of $ 2.50 per thousand feet for any shortage; also that there was a shortage of over 1,200,000 feet, amounting at the stipulated rate to over $ 3,000. This sum the defendant claimed should be deducted from the principal of the notes. The abovementioned instruments were put in evidence by the plaintiff on the trial. Neither of them contains the agreement thus alleged in the answer. Against the objection of plaintiff, the court allowed the defendant to introduce evidence tending to prove the agreement as alleged, and the shortage. The jury assessed the plaintiff's damages at $ 867.22. A motion by the plaintiff for a new trial, on the ground () that the court erred in admitting evidence of the alleged contemporaneous parol agreement, was denied by the court, and judgment for the plaintiff was rendered pursuant to the verdict. The plaintiff appealed from the judgment.
Judgment reversed, and cause remanded for new trial.
The cause was submitted for the appellant on briefs of J. D Markham.
For the respondent there were briefs by Hudd & Wigman, and oral argument by Mr. Hudd. They contended, inter alia, that the consideration for a promissory note may be inquired into between the original parties. Winchell v. Latham, 6 Cow., 682; Slade v. Halstead, 7 id., 322; Oakley v. Boorman, 21 Wend., 588. If the consideration has only partly failed, and the deficiency is susceptible of definite computation, this may be shown in defense pro tanto. Thomas v. Thomas, 7 Wis. 476; 2 Greenl. Ev., § 199. To show such failure, parol evidence of what took place at the time the note was made is admissible. Peterson v. Johnson, 22 Wis. 21; Hubbard v. Galusha, 23 id., 398; Folger v Dousman, 37 id., 619; Jones v. Keyes, 16 id 562; Smith v. Carter, 25 id., 283; Ward v. Perrigo, 33 id., 143; Jones v. Heiliger, 36 id., 149.
The following opinion was filed September 21, 1880:
The rule that proof of antecedent or contemporaneous verbal agreements between the parties cannot be received to alter or control their written agreement, was applied in Underwood v. Simonds, 12 Met., 275. The action was by the payee against the maker of a promissory note, payable absolutely by its terms; and it was held that evidence was not admissible as a defense, that the maker took property of the payee to dispose of as his own; that he sold the property to one Gibbs and took his note therefor, which note he was unable to collect; and that he gave to the plaintiff the note in suit upon an oral agreement between them that it was not to be paid unless the defendant should collect the note of Gibbs. The rule, the reason thereof, and its application to that case, are so clearly and satisfactorily stated in the opinion by Chief Justice SHAW, that we cannot do better than to make the following quotation therefrom:
The question to be determined here is, whether the above rule is applicable to this case. Parol evidence is, undoubtedly competent to show a total or partial failure of the consideration of a note or other written contract; or, where only part of the contract is reduced to writing, to prove the portion which the parties have allowed to rest in parol; or to contradict a mere receipt which does not purport to contain the contract out of which it arose; or to show the manner in which, or the fund out of which, a note or obligation is to be paid, provided it does not vary the contract expressed in the writing; or to show a consideration...
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