Roberts v. Greig

• Decision Date: 08 October 1900
• Citation: 15 Colo.App. 378,62 P. 574
• Parties: ROBERTS v. GREIG et al.
• Court: Colorado Court of Appeals

62 P. 574

15 Colo.App. 378

ROBERTS v. GREIG et al.

Court of Appeals of Colorado

October 8, 1900

Appeal from district court, Arapahoe county.

Action by L.H. Roberts against A.S. Greig and others on a note. From a judgment in favor of the defendants, plaintiff appeals. Reversed.

Patterson Richardson & Hawkins, for appellant.

H.A Lindsley and H.E. May, for appellees.

BISSELL P.

This action is based on a promissory note. It is a promise to pay one year after date, to the order of E.E. Hill, $588, at the First National Bank, with interest at 8 per cent., for value received. The paper was signed by Lomax Greig, and Harris.

Hill indorsed it in blank, and delivered it to Roberts, after maturity, for a valuable consideration. Thereafter, and on different dates covering a period of two years or more, the parties paid about $220 on the principal and interest. Failing to pay the balance, this suit was brought. When it came to trial, the defendants, or at least two of them, gave evidence substantially that when the note was executed the parties had come together to discuss the proposition of Hill's retirement from the enterprise in which the parties had embarked. It appeared that they had located or purchased some mining claims down in New Mexico, which were supposed to be of value, and had put up a mill to treat the ore which was expected to be taken out of the property. Much money had been expended, and the concern was in debt some thirteen or fourteen hundred dollars. Hill's family seems to have been sick, and he wanted to get out of the scheme, and relieve himself from any liability for the accrued debts. He had a chance to sell, but the parties refused to let the vendee come in. Under the original agreement this right of admission or exclusion was reserved. This rendered Hill somewhat anxious to get out, and the parties came together to see if a satisfactory arrangement could be made. The result of it was an agreement whereby Hill was to retire, be released from any obligation to pay the debts, and receive this note. Now comes in the nub of the dispute. Two of the parties testified that they expressed their willingness to sign a joint note, but on condition that the note should be paid from the proceeds of the mill, and, if there were no earnings, the note was to be returned and destroyed. This evidence as to the destruction of the note was only testified to by one of them, the other simply saying that the parties were to sign a note to be paid out of the proceeds of the mill. All this evidence was objected to, and on this objection the principal question in the case may be said to arise. During the progress of the trial the plaintiff showed the various payments which had been made, and then attempted to prove by the attorney what was said by the parties when they made them. This testimony was objected to and excluded. These two questions are the only ones which are of sufficient importance to justify a reversal of the case, and all others suggested by the record are inconsequential.

No more conservative rule of evidence has ever been established than that which inhibits the introduction of parol evidence of a contemporaneous agreement to modify the terms and conditions of one in writing. I believe it is as wise a rule as the doctrine which was incorporated into and became what is known as the statute of frauds. I am decidedly of the opinion that it would be a much wiser and safer doctrine to permit no evidence to be offered contradicting the terms of a written instrument unless that evidence is in writing. It tends to the conservation of the integrity of written contracts, the preservation of property rights and interests, and the prevention of untold and almost illimitable prevarication. The attempt to enforce a liability which the parties believe to be unjust because of parol understandings affords a terrible temptation to a defendant to attempt, as he conceives, to compel the doing of that which is right, and was agreed to, by stating as the agreement what may avoid the express terms of the promise. To bring about this result they put their understandings into the form of express promises specific agreements, antecedent conditions, or conditions subsequent, and are often led to enlarge, broaden, and make specific matters which before were limited and uncertain. The temptation is almost too great for frail humanity, and therefore I believe personally that there ought never to have been an exception ingrafted on that rule. Notwithstanding this fact, the rule is otherwise, and this court, in the Barets Case, 9 Colo.App. 341, 48 P. 834, speaking by me, recognized an exception to the doctrine. In that case this court went no further than to hold that wherever parties were able to prove that a piece of commercial paper had been executed, and had passed into the possession of a party, but under circumstances which would not make the transmission a delivery under the law merchant, the party might show the circumstances and conditions of the delivery, and prove the existence of the condition precedent, which, not having been accomplished, left the delivery incomplete. This was practically the Dulaney Case (in ...