Morse v. Rice

• Citation: 54 N.W. 308,36 Neb. 212
• Parties: MORSE v. RICE.
• Decision Date: 01 February 1893
• Court: Supreme Court of Nebraska

36 Neb. 212

54 N.W. 308

MORSE

v.RICE.

Supreme Court of Nebraska.

Feb. 1, 1893.

Syllabus by the Court.

1. A written receipt may be explained or contradicted by parol testimony; but where it embodies a contract it cannot be contradicted, but is conclusive upon the parties, in the absence of fraud or mistake. Rule applied.

2. In an action upon a demand certificate of deposit it was held, in the absence of any agreement as to interest, that interest is to be computed at the rate of 7 per cent. from the time payment of the certificate was demanded of the defendant, and, in case no such demand has been made, then from the date of the commencement of the action.

3. Held, that there is no error in the charge of the court, and that the evidence sustains the verdict of the jury.

Error to district court, Merrick county; Marshall, Judge.

Assumpsit by William H. C. Rice against William R. Morse. Plaintiff had judgment, and defendant brings error. Affirmed.J. W. Sparks and J. C. Martin, for plaintiff in error.

W. R. Watson and A. Ewing, for defendant in error.

NORVAL, J.

On the 11th day of January, 1890, defendant in error brought his action in the district court to recover the sum of $4,000, 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: “$2,000.00. Clarks, Neb., January 25th, 1888. No. 2,089. W. H. C. Rice has deposited with W. R. Morse, banker, two thousand dollars, payable to the order of himself in current funds on the return of this certificate properly indorsed any month after date, with interest at _____ per cent. per annum. This certificate will not be paid until due, and interest ceases at maturity. W. R. Morse.” 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 10 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 10 per cent. from date, signed by Ray Miller and Albert Miller; one for $535, drawing interest at 10 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 10 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: “Central City, Feb. 12, 1889. Received of W. R. Morse 3 notes in amount of $1,152, for which I hereby credit on account. W. H. C. Rice.” 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 30 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, and modifying the terms of a valid written contract In such case the writing must govern. It is also a well-settled principle 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, where a receipt also embodies a stipulation in the nature of a contract, it is not open to...