Stein v. Fogarty
Decision Date | 31 January 1896 |
Parties | STEIN v. FOGARTY |
Court | Idaho Supreme Court |
PAROL EVIDENCE-PROMISSORY NOTE.-In the absence of fraud, accident or mistake, parol evidence of an oral agreement contemporaneously made with the execution of a promissory note cannot be admitted to show that such note, although made payable in money was by such agreement to be paid in work and labor.
(Syllabus by the court.)
APPEAL from District Court, Ada County.
Order sustained. Costs of appeal awarded to respondent.
Hawley & Puckett, for Appellant.
Is parol evidence of a contemporaneous oral agreement showing the conditions upon which a promissory note is given admissible? Or, in other words, can the consideration be inquired into? The point in the case at bar is not as to the language used in the note, but only as to the conditions on which it was given to plaintiff; in other words, the consideration may be inquired into, such consideration being concurrent parol agreements. (Schundler v Mulheiser, 45 Conn. 153; Kennedy v. Goodman, 14 Neb. 585, 16 N.W. 834; Maltz v. Fletcher, 52 Mich 484, N.W. 228; Walker v. Hagerty, 30 Neb. 120, 46 N.W. 221.)
J. R Wester and O. E. Jackson, for Respondent.
It is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making or indorsing a promissory note, cannot be permitted to vary, qualify or contradict, or add to, or subtract from, the absolute terms of a written contract, nor to show that the note is payable out of a different fund, or in any manner different from that expressed in the note itself. (Conner v. Clark, 12 Cal. 168, 73 Am. Dec 529; Guy v. Bibend, 41 Cal. 322; Aud v. Magruder, 10 Cal. 282; San Jose Sav. Bank v. Stone, 59 Cal. 183; Erenberg v. Peters, 66 Cal. 115, 4 P. 1091; Dulaney v. Burke, 2 Idaho 719, 23 P. 915; Brown v. Spofford, 95 U.S. 482; Specht v. Howard, 16 Wall. 564; Forsyth v. Kimball, 91 U.S. 291.)
This is an action on a promissory note. The answer admits the execution of the note, but alleges, at the time of the execution of said note, and as a contemporaneous act therewith, the plaintiff and defendant mutually agreed that said note should be paid by the defendant in work and labor as a plumber, at the usual rates, and upon a certain house in Boise City, the property of plaintiff, then being constructed by him. The cause was tried by the court without a jury, and resulted in a judgment for the defendant. Thereupon plaintiff moved for a new trial, which motion was granted, and a new trial ordered. This appeal is from the order granting a new trial. The promissory note sued on is as follows:
(Signed) "JOHN J. FOGARTY.
"Due Nov. 6th, 1893. No. 2,670."
The question involved in this case is whether parol evidence of an oral agreement made...
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