Smith v. Mussetter

• Decision Date: 10 July 1894
• Citation: 58 Minn. 159,59 N.W. 995
• Parties: SMITH ET AL. v. MUSSETTER.
• Court: Minnesota Supreme Court

58 Minn. 159

59 N.W. 995

SMITH ET AL.

v.MUSSETTER.

Supreme Court of Minnesota.

July 10, 1894.

(Syllabus by the Court.)

1. An answer construed as alleging that the delivery to the payee of a note sued on was only conditional, to take effect as a contract only on the happening of a future, contingent event.

2. Westman v. Krumweide, 15 N. W. 255, 30 Minn. 314, followed, to the effect that parol evidence is admissible to prove such an agreement.

Appeal from district court, Ramsey county; John W. Willis, Judge.

Action by Edward B. Smith and others against Lathrop Mussetter upon a promissory note. Defendant answered, alleging an agreement between the parties, contemporaneously with the making and delivery of the note, whereby, upon the happening of certain contingencies, the note should take effect as a contract; otherwise, to become void. By plaintiffs' affidavit filed, this alleged agreement was shown to have been oral. From an order striking out his answer as sham and frivolous, defendant appeals. Reversed.

Lawler, Durment & Bigelow and Edmund S. Durment, for appellant.

Horace G. Stone, for respondents.

MITCHELL, J.

Appeal from an order striking out an answer as sham and frivolous. Of course, no rule is more elementary than that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. But the rule is almost equally well settled that parol evidence may be given to prove the existence of any separate parol agreement constituting a condition precedent to the attaching of any obligation under the written instrument. This is not to vary a written instrument, but to prove that no contract was ever made, -that its obligation never commenced. In Westman v. Krumweide, 30 Minn. 314, 15 N. W. 255 (followed in subsequent cases), we held, in deference to the great weight of authority, that under this rule, where an unsealed written instrument is signed, and delivered to the proper party, parol evidence is admissible to show that notwithstanding such delivery the agreement of the parties was that such instrument should become operative as a contract only upon the happening of a future, contingent event. The dangers from this rule, and the consequent caution that should be exercised in considering a defense of this nature, were adverted to in Machine Co. v. Davis, 40 Minn. 110, 41 N. W. 1026, but the rule is now too firmly established in the law to be changed.

The principal question on this appeal...