Tiedt v. Johnson
| Decision Date | 03 February 1922 |
| Docket Number | 22,554 |
| Citation | 186 N.W. 779,151 Minn. 288 |
| Parties | FRED TIEDT v. JOHN F. JOHNSON |
| Court | Minnesota Supreme Court |
Action in the district court for Marshall county to recover $750 on a promissory note. Defendant set up a counterclaim for $500 and offered judgment for the balance. The case was tried before Grindeland, J., who at the close of the testimony denied plaintiff's motion for an instructed verdict in his favor, and a jury which returned a verdict for $337.37. From an order denying his motion for judgment notwithstanding the verdict or for a new trial, plaintiff appealed. Affirmed.
Exchange of chattels -- finding as to mortgage sustained by evidence.
1. The plaintiff and the defendant traded tractors. The contract rested in parol. There was a mortgage on the defendant's tractor. The evidence sustains a finding that the amount to be paid by the defendant to the plaintiff upon the exchange was increased by the amount of the mortgage and the total was put into notes; and that it was agreed that if the defendant paid the mortgage he should have an allowance or credit as of the date of the trade.
No violation of parol-evidence rule.
2. Evidence of the agreement as to the mortgage, which was a part of the oral contract of exchange, did not offend the parol-evidence rule.
Written receipt for promissory notes not the contract -- parol evidence admissible.
3. After the trade and the execution of the notes the plaintiff gave the defendant a receipt for them, referring also to some plowing which it was contemplated the defendant should do but not mentioning the mortgage. The receipt was not the contract and parol evidence as to the mortgage agreement was not objectionable as varying the terms of a written contract.
Julius J. Olson, Rasmus Hage and Martin O'Brien, for appellant.
A. N. Eckstrom, for respondent.
Action on a promissory note for $700. There was a verdict for the plaintiff for $337.37. He appeals from the order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.
1. In June, 1917, the plaintiff and the defendant traded tractors. The contract was oral. The note in suit is one of three, aggregating $2,045, given in concluding the trade.
The controversy on the merits is as to the amount which the defendant was to give as boot money. Stating it in round figures the plaintiff claims that the amount was $2,000 and the defendant claims that it was $1,500. There was a mortgage of $500 on the defendant's tractor. The testimony of the defendant is that the plaintiff proposed that the $500 be added to the notes given for the difference, and that the defendant get the parties from whom he had bought the tractor and to whom the $500 was owing to carry it over the year. He made the arrangement with his vendor. The plaintiff wanted it this way so that, if the mortgage was not paid and the tractor lost to him, he would have the defendant's obligation for the boot money and the amount of the mortgage, which was about the value of the tractor; and it was agreed that if the defendant paid the mortgage he would be allowed a credit of $500 on the notes as of the date of the original transaction. This, he claims, is why the notes were of the total amount stated instead of $1,500 or about that. He paid the $500 mortgage. At the time of the trade there was also an indefinite agreement, of only incidental importance here, contemplating that the defendant should do some plowing for the plaintiff at a stipulated price and that the money earned would be applied on the promissory notes. Some plowing was done and the money earned was applied accordingly.
The jury accepted the defendant's version of the contract. The testimony of both the plaintiff and the defendant is positive. Each has supporting evidence. The issue was for the jury. It could have found either way, and a finding for the plaintiff would be quite as well supported. Its finding has the approval of the trial court and it is not to be disturbed by us.
2. The plaintiff contends that the evidence as to the effect of the payment of the mortgage varies the terms of the notes and that its reception was in violation of the parol-evidence rule.
The agreement of exchange rested in parol. It was performed by the defendant so far as concerns the payment of the mortgage. Not as much plowing was done as was contemplated but no complaint is made of it.
The evidence that the defendant was to have an allowance or credit of $500 in the event he paid the mortgage upon the tractor which he traded did not vary the terms of the notes. The agreement for this allowance or credit was a part of their consideration. When he paid he was entitled to a credit and could offset the amount if sued. If the notes had been sold to an innocent purchaser, and had been paid by the defendant, he could have recovered of the plaintiff the $500 which he paid on the mortgage. The contract was not that the notes were not to be paid according to their terms. That would constitute a forbidden variance by parol. See Security Nat. Bank v. Pulver, 131 Minn. 454, 155 N.W. 641; Harrison v. Morrison, 39 Minn. 319, 40 N.W. 66; Knoblauch v. Foglesong, 38 Minn. 352, 37 N.W. 586. The contract was that if the defendant paid the mortgage, the amount of which was included in the notes, so that the tractor would be free, he should have a credit for the $500. The proof of the promise to credit the $500 did not offend the parol-evidence rule. Germania Bank v. Osborne, 81 Minn. 272, 83 N.W. 1084; Shove v. Martine, 85 Minn. 29, 88 N.W. 254, 412; Backus v. Sternberg, 59 Minn. 403, 61 N.W. 335; State Bank v. Pangerl, 139 Minn. 19, 165 N.W. 479; Almich v. Downey, 45 Minn. 460, 48 N.W. 197. And see Drovers C.L. & Inv. Co. v. McGraw, 150 Minn. 50, 184 N.W. 365; Giltner v. Quirk, 131 Minn. 472, 155 N.W. 760; National Citizens Bank v. Bowen, 109 Minn. 473, 124 N.W. 241; Shalleck v. Munzer, 121 Minn. 65, 140 N.W. 111.
3. After the transaction was closed and on the same day the plaintiff gave the defendant a receipt for the three notes. This...
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