Morse v. Rice
| Decision Date | 01 February 1893 |
| Docket Number | 4785 |
| Citation | 54 N.W. 308,36 Neb. 212 |
| Parties | WILLIAM R. MORSE v. WILLIAM H. C. RICE |
| Court | Nebraska Supreme Court |
ERROR from the district court of Merrick county. Tried below before MARSHALL, J.
AFFIRMED.
J. W Sparks and J. C. Martin, for plaintiff in error.
A Ewing and W. R. Watson, contra.
On the 11th day of January, 1890, defendant in error brought his action in the district court to recover the sum of four thousand dollars and interest upon two certificates of deposit, executed by plaintiff in error for the sum of $ 2,000 each, dated respectively January 25, 1888, and February 3, 1888. The certificates are alike except as to dates and numbers, and in words and figures following:
The petition filed in the court below is in the usual form. The answer admits the execution and delivery of the certificates, denies that payment thereof was ever demanded, and alleges that defendant, on the 14th day of January, 1889, transferred to plaintiff a certain promissory note for $ 280, drawing interest at ten per cent from July 14, 1888, which note, it is averred, plaintiff has collected and agreed to give defendant credit therefor upon said certificates of deposit. The defendant further pleads payment on the 12th day of February, 1889, of the sum of $ 1,152, by transferring to plaintiff three promissory notes aggregating that sum.
The plaintiff for reply admits the receipt of the notes; avers that they were transferred to him by defendant as collateral security for the payment of said certificates of deposit, and that no part of said notes has ever been paid.
Upon the trial the jury returned a verdict in favor of the plaintiff for $ 4,060.77. Defendant brings the cause to this court for review on error.
It is undisputed that Mr. Morse delivered to Mr. Rice, as collateral security, a promissory note executed by one Fremont Hoy, calling for the sum of $ 280, and interest. As the testimony shows that no part of this note has ever been collected or paid, plaintiff in error is not entitled to a credit in this action on account of said note.
It is conceded that on the 12th day of February, 1889, plaintiff in error turned over to defendant in error three promissory notes described as follows: One for $ 67, dated February 1, 1889, due in nine months, drawing interest at ten per cent from date, signed by Ray Miller and Albert Miller; one for $ 535, drawing interest at ten per cent, executed by Henderson Miller and Albert Miller, bearing date February 1, 1889. The other was signed by Albert Miller and Henderson Miller, calling for $ 550 with interest at ten per cent, dated February 1, 1889, and due in nine months. No part of these notes has been paid. At the time the notes were delivered to Mr. Rice he executed an instrument and gave the same to Mr. Morse, as follows:
On the trial plaintiff below introduced testimony tending to establish that at the time the notes were delivered to him and the above receipt therefor was given, the agreement between the parties was that the notes were taken solely as security for the payment of the certificates of deposit, and at the same time Mr. Morse further promised to take up these notes in thirty days and pay one-half of the certificates, and pay the remainder before the following July.
It is contended that the trial court erred in admitting oral evidence to contradict or explain the receipt. It is an elementary rule that parol contemporaneous evidence is inadmissible for the purpose of explaining, varying, or modifying the terms of a valid written contract. In such case the writing must govern. It is also a well settled principal of law that a simple receipt is only prima facie evidence of the truth of the statement therein contained, and as between the parties is always subject to parol explanation or contradiction. But when a receipt also embodies a stipulation in the nature of a contract, it is not open to contradiction, but is conclusive upon the parties, in the absence of proof of fraud or mistake. Among the numerous authorities which sustain this doctrine may be cited Price v. Treat, 29 Neb. 536, 45 N.W. 790; Morris v. St. Paul & C. R. Co., 21 Minn. 91; Cummings v. Baars, 36 Minn. 350; Elsbarg v. Myrman, 41 Minn. 541; American Bridge Co. v. Murphy, 13 Kan. 35; Clark v. Marbourg, 33 Kan. 471; St. Louis, Ft. S. & W. R. Co. v. Davis, 35 Kan. 464; Stapleton v. King, 33 Iowa 28; Kellogg v. Richards, 14 Wend. 116; Coon v. Knap, 8 N.Y. 402; Smith v. Holland, 61 N.Y. 635; Michigan C. R. Co. v. Dunham, 30 Mich. 128; McAllister v. Engle, 52 Mich. 56; Smith v. Schulenberg, 34 Wis. 41; McKinney v. Harvie, 35 N.W. 668...
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