Smith v. Mussetter

• Decision Date: 10 July 1894
• Docket Number: No. 8836.,8836.
• Citation: 58 Minn. 159
• Parties: EDWARD B. SMITH <I>et al.</I> <I>vs.</I> LATHROP MUSSETTER.
• Court: Minnesota Supreme Court

58 Minn. 159

EDWARD B. SMITH et al.vs.

LATHROP MUSSETTER.

No. 8836.

Supreme Court of Minnesota.

Argued June 21, 1894.

Reversed July 10, 1894.

Appeal by defendant, Lathrop Mussetter, from an order of the District Court of Ramsey County, John W. Willis, J., made January 18, 1894, striking out his answer as sham and frivolous.

On January 16, 1893, defendant made and delivered his note to plaintiffs, Edward B. Smith, John J. Parker and Victor C. Gilman, whereby he promised to pay them on September 1 then next $2,105 and interest at six per cent. a year. The note was not paid, and this action was to collect the contents. Defendant answered admitting that he made the note, but denied that he delivered it. He also alleged in substance that Charles F. Dickerman proposed to build a business block in St. Paul and lease it to defendant for a term of years. Defendant was to obtain two responsible sureties for the payment of the rent. To secure these sureties defendant was to insure his life for $50,000 payable to them in case of his death. Plaintiffs were insurance agents and defendant applied to them for such life insurance, and stated to them the whole matter, and left with them the note in suit for the premium. They obtained for defendant the policies of life insurance on his life for the $50,000, but Dickerman failed to fulfil on his part. The lease was never made and defendant tendered back the policies and demanded his note. The note and the policies were to become valid contracts if Dickerman performed on his part and the sureties engaged for the rent, and not on any other condition. Plaintiffs moved the court to strike out the answer as sham and irrelevant on the ground that if true the agreements were contemporaneous oral conditions, which could not be proved to annul the written contract. The court granted the motion and defendant appeals.

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...