Rieck v. Daigle
| Decision Date | 19 June 1908 |
| Parties | HENRY RIECK v. J. B. DAIGLE |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pierce county; Cowan, J.
Action by Henry Rieck against J. B. Daigle. Judgment for defendant and plaintiff appeals. Reversed and remanded.
Reversed and remanded.
Christianson & Weber, for appellant.
A statement in a note that merely refers to the consideration or transaction does not affect its negotiability. Rev. Codes 1899, Ch. 100, Sec. 5; Buford v. Ward, 19 So. 357; New Zealand Ins. Co. v. Maas, 59 P. 213; Biegler v. Merchants' Loan & Trust Co., 45 N.E. 512; Dobbins v. Oberman, 22 N.W. 356; Bank of Carroll v. Taylor, 25 N.W. 810; Kimball Co. v. Millon, 48 N.W. 1100; Hudson v. Emmons, 65 N.W. 542; Markey v. Corey, 66 N.W. 493, Choate v. Stevens, 74 N.W. 289.
Parol evidence cannot vary terms of a written contract. Rev. Codes 1899, Sec. 3888; Jones on Evidence, Sec. 505; Thompson v McKee, 5 Dak. 172, 37 N.W. 367; Ely v. Kilborn, 5 Denio 514; Barnstable Sav. Bank v. Ballou, 119 Mass. 487; Clanin v. Easterly Harvesting Machine Co., 3 L. R. A. 863; Brewton v. Class, 22 So Rep. 916; First Nat. Bank v. Bows, 51 P. 777; Milich v. Armour Packing Co., 56 P. 1; Adams v. Watkins, 61 N.W. 774; Harrison v. Howe, 67 N.W. 527.
This is an appeal from an order of the district court of Pierce county denying plaintiff's motion for judgment notwithstanding the verdict, or for a new trial. The action was brought to recover upon a promissory note, executed and delivered by defendant to one Hulda Rieck, which note, it is alleged, was, before maturity and for value, sold and indorsed to plaintiff, the stepson of the payee of said note. The complaint is in the usual form, and the answer, after admitting the execution and delivery of the note as alleged in the complaint, pleads payment in full prior to the commencement of the action. The answer also denies that plaintiff purchased said note in due course of business, and alleges that he had full knowledge of all the facts concerning the consideration thereof at the time of his purchase. The answer then proceeds to set out the consideration for the giving of such note, and alleges that defendant purchased a hotel property from Hulda Rieck for the sum of $ 900, agreeing to pay her $ 600, and to assume the payment of $ 300, which she then owed to one Hyde from whom she had heretofore purchased the property. It also alleges that Hulda Rieck represented to him that the sum of $ 300 was the total amount owing by her to Hyde on her contract for the purchase of said property, and that such representations were falsely and fraudulently made, with knowledge thereof at the time they were made, and defendant alleges that there was at said time the sum of $ 400 due said Hyde from her on such contract, and that defendant had to pay, and did pay, said sum, with interest, to Hyde before he could get a deed for said property from her. It is also alleged that the note in suit is one of four notes, for $ 100 each, which defendant executed and delivered to Hulda Rieck as part purchase price for said property, and further that defendant has paid Hulda Rieck $ 500 and interest, and Hyde $ 400 and interest, being payment in full of the purchase price of said property.
At the trial the note in suit, after being properly identified, was introduced in evidence, and is as follows: Said note bears an indorsement in blank by the payee. It was proven that, at the time this note was executed and delivered, there was a contract in writing, entered into between the parties, for the sale and purchase of this hotel property. This contract was offered in evidence, and, among other stipulations, contains the following: "Said Hulda A. Rieck and John Rieck, her husband, hereby agree to protect J. B. Daigle in quiet and peaceable...
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