Levering v. Washington

• Decision Date: 01 January 1859
• Citation: 3 Minn. 227
• Court: Minnesota Supreme Court
• Parties: LEVERING & MORTON vs. P. G. WASHINGTON.

3 Minn. 227

(3 Minn. R. p. 323.)

LEVERING & MORTON vs. P. G. WASHINGTON.

Supreme Court of Minnesota.

Error to district court, Ramsey County.

Points and authorities for the plaintiffs in error: —

There is no better settled principle in the commercial law, than that, as between the original parties to a note or its transfer, a party apparently liable on the face of the instrument to the holder may, for any cause, show by parol that in point of fact he is not so liable. Thus, it is a familiar principle that a party may show, by way of defense, want, failure, or illegality, of consideration. It is also a principle equally familiar that a party may show, as a defense, that he was an accommodation maker or indorser for the plaintiff, of the note or bill sued on, although appearing otherwise on the face of the instrument, and this upon the ground that he entered into no contract to pay him, but the reverse, which fact may also be shown by parol. And it is precisely upon the same principle that our defense is based, in the case before the court. This species of proof is considered as no more altering or varying the written instrument than proof of want of consideration, and so well settled is the law upon this point, that it may seem superfluous to cite authorities. Stackpole v. Arnold, 11 Mass. 32; Susquehanna Bridge & Bank Co. v. Evans, 4 Wash. C. C. 480; Brock v. Thompson, 1 Bail. 322; Wright v. Latham, 3 Murph. 298; Hill v. Ely, 5 Serg. & Rawle, 363; Pike v. Street, 1 M. & M. 226-7, and note; Goupy v. Harden, 7 Taunt. 163; Butler v. Suddeth, 6 Monroe, 541; Daniel v. McRae, 2 Hawks, 590; Perkins v. Catlin, 11 Conn. 213; Barker v. Prentiss, 6 Mass. 430-3-4; Smith v. Barber, 1 Root, 207; Lonsdale v. Brown, 3 Wash. C. C. 404; Dean v. Hall, 17 Wend. 214-15, et seq.; Brent's Ex'rs v. Metropolis Bank, 1 Peters, 89; Barrows v. Lane, 5 Vt. 161.

It is a well settled principle that where a writing has been executed by way of part performance merely of a contract, or where the writing only in part expresses the contract, leaving the law to imply the balance, as in case of a bank indorsement upon a note, parol evidence is admissible, to prove collateral and independent facts, about which the writing is silent. Shepherd v. Temple, 3 N. H. 455; Reab v. McAlister, 8 Wend. 116; McCulloch v. Girard, 4 Wash. C. C. 289; Gerrish v. Washburn, 9 Pick. 338; Hall v. Maccubin, 6 Gill & J. 107-110; McCreary v. McCreary, 5 Gill & J. 147-156; Kelsey v. Dickson, 2 Blackf. 236; 3 Blackf. 189; Hunt v. Adams, 6 Mass. 519-524; Barker v. Prentiss, id. 434.

Furthermore, it is a fraud in the plaintiff to attempt to charge the defendants Levering and Morton upon their indorsement, under the circumstances and understanding as set forth in the answer, and parol evidence is admissible to show it. O'Hara v. Hall, 4 Dall. (Pa.) 341; Baring v. Shippen, 2 Binn. 162; Jackson v. Bowen, 1 Caines, 359; Mageehan v. Adams' Lessee, 2 Binn. 109; Vrooman v. Phelps, 2 Johns. 177; McFerran v. Powers, 1 Serg. & Rawle, 102; Barndollar v. Tate, id. 160; Wallace v. Baker, 1 Binn. 616; 5 Binn. 469; Field v. Biddle, 2 Dall. (Pa.) 171; Christ v. Diffenbach, 1 Serg. & Rawle, 464; Herrick v. Carman, 10 Johns. 224; Woodhull v. Holmes, id. 231; Baker v. Prentiss, 6 Mass. 434.

Points and authorities for defendant in error: —

1. The law relating to protest of notes, allowing the service of notice of protest by mail, through the post office, in force when the note in question was made and indorsed, became a part and parcel of the contract, the same as though the principles and provisions of the law had been reduced to writing, and incorporated in the contract, when the same was made; and as to this contract, the law so in force, and not the law of July 26, 1858, applies and governs.

2. The new matter in the answer, setting forth that the defendants indorsed the note, "that it might be considered in the distribution of assets of Wm. H. Randall," and "not for the purpose of making themselves liable," is no defense; for their contract, whatever it was, was in writing, indorsed on the note, and they are bound by that written contract; and so far as their liability on that written contract is concerned, it is wholly immaterial what was or might have been their intention or purpose in fact. Their purpose and intention was a matter of law, and is a part of the legal effect of the written agreement, and by it they are conclusively bound. No parol agreement or understanding made at the time can vary or change the contract in writing. A party cannot say that he made a promise to pay with an intention not to pay. The law fixes the purpose, object, and intention, of the act to the act, and they cannot be separated. 3 Phil. Ev. (Cow. & Hill Notes) 1460, and cases cited; id. 1466; 1 Ross Leadg. Cases, 172, which is the case of Woodbridge v. Spooner, 3 Barn. & Ald. 233; Bank of United States v. Dunn, 6 Peters, 55 (overruling the principle of case, 4 Wash. C. C. 480, referred to in plaintiff's brief); Hightower v. Ivy, 2 Porter, 308.

Smith & Gilman, for plaintiffs in error.

Geo. L. & E. A. Otis, for defendant in error.

ATWATER, J.

This case comes up on writ of error to the district court of Ramsey County, the plaintiffs in error being defendants below. The cause of action arose upon a promissory note, reading as follows, viz.:

                  "$202.00.                  ST. PAUL, Aug. 27, 1857
                

"Twelve months after date, I promise to pay to the order of Andrew Levering and William H. Morton, assignees, two hundred and two dollars, with interest at three per cent. per month; value received.

                                                 "WM. H. RANDALL."
                

The amended complaint alleges, in substance, that on or about the 12th of October, 1857, the plaintiff had owned and was seized and possessed of a valid claim against said Randall for money loaned, amounting to the sum specified in said note; and that for the purpose of securing to the plaintiff the aforesaid claim and indebtedness, the defendant Randall made, and the defendants Levering and Morton indorsed, said note, at the time of the making thereof, for the purposes aforesaid; the indorsement being as follows, viz.: "Andrew Levering, William H. Morton, assignees of Wm. H. Randall;" that after said note was so made and indorsed, for the purpose of securing to the plaintiff the claim aforesaid, the defendant Randall delivered said note to the plaintiff, &c. The further usual allegations in like cases are made, with statement of demand and notice of protest. The answer sets up want of consideration on the part of defendants Levering and Morton, with denial of due notice of protest. The cause was tried by the court, and judgment rendered in favor of the plaintiff.

The plaintiff attempts to charge the defendants on two grounds — as original makers, and indorsers. In support of the first, we are cited to Marienthal v. Taylor, 2 Minn. [147]; McComb, Simpson & Co. v. Thompson, id. [139]; Pierse v. Irvine, Stone & McCormick, 1 Minn. [370]; Josselyn v. Ames, 3 Mass. 274. None of these cases support the position taken by the counsel for the defendants in error. The first three hold that a stranger indorsing a note in blank at the time of its inception and before delivery, for the purpose of securing the note, may be held as an original...