W. Mfg. Co. v. Rogers

• Decision Date: 08 April 1898
• Citation: 54 Neb. 456,74 N.W. 849
• Parties: WESTERN MFG. CO. v. ROGERS ET AL.
• Court: Nebraska Supreme Court

54 Neb. 456

74 N.W. 849

WESTERN MFG. CO.

v.ROGERS ET AL.

Supreme Court of Nebraska.

April 8, 1898.

Syllabus by the Court.

1. A promissory note or contract cannot be varied, qualified, or contradicted by evidence of a prior or contemporaneous agreement resting in parol.

2. A memorandum indorsed on a promissory note, to the effect that the promise may be discharged by substitution of other obligations of the makers within a given time, is for the benefit of the makers, and, if they fail to avail themselves of the privilege or option, within the prescribed period, the note becomes absolute, and a recovery may be had thereon, after maturity, according to its legal import.

3. Where, on the trial, the defendant admits on the record full liability on a cause of action set forth in the petition, it is error to refuse an instruction tendered to find for plaintiff as to such cause of action.

4. The interpretation of a written contract is for the court, and not the jury, when it is capable of being construed by its terms alone, unaided by extrinsic facts.

Error to district court, Hall county; Kendall, Judge.

Action by the Western Manufacturing Company against J. J. Rogers and B. J. Rogers. Verdict for plaintiff, and new trial denied, and plaintiff brings error. Reversed.Geo. H. Thummel and Lamb, Adams & Scott, for plaintiff in error.

Abbott & Caldwell, for defendants in error.

NORVAL, J.

The Western Manufacturing Company set forth in its petition in the court below two causes of action, the first of which was to recover the sum of $76.66, with 7 per cent. interest thereon, as a balance alleged to be due from defendants for goods sold and delivered. The second count of the petition was upon a promissory note for $208.50, executed by the defendants on October 1, 1891, due one year thereafter, and payable to the order of plaintiff, with interest at 8 per cent. from maturity. The note, at the time it was signed and delivered, contained the following indorsement: “This note is given for 6 mowers and 2 hay rakes on hand with J. J. & B. J. Rogers, October 1, 1891. The same are to be sold by said J. J. & B. J. Rogers during the season of 1892, and at the maturity of this note we are to accept in payment of the same their notes due on the average time on which said mowers and rakes were sold. Western Mfg. Co., M. D. Welch, Secy. and Treas.” The petition charges that the foregoing indorsement gave the defendants an option or privilege to take up the note in a certain manner, and that they neglected and refused to avail themselves of such option, wherefore they are liable for the face of the note and interest. The defendants answered by a general denial of the averments of the petition, and pleaded that in 1890 plaintiff appointed the defendants its agents to sell certain farm machinery, principally mowers and rakes, and repairs therefor, and that under said agreement they received certain machines and repairs, including the goods described in the petition, also the six mowers and two rakes mentioned as being the consideration for said note; that, for the purpose of keeping true and correct accounts between the parties, books were opened, and all goods shipped to defendants were charged to them; that in October, 1891, M. D. Welch, plaintiff's secretary and treasurer, represented to defendants that plaintiff was dispensing with certain portions of its bookkeeping, and requested defendants to execute the note sued on, and Welch indorsed thereon the said memorandum, promising at the time and before said note was executed that it would show said machines were held as commission goods in the hands of defendants, which would not have to be paid for unless sold; that under such representations they signed and delivered said note to plaintiff; that no part of the same was to be paid unless said goods were sold; that defendants paid freight on the machines on hand to the amount of $50, and that their storage was of the value of $50, for which they asked compensation. The reply was a general denial. Plaintiff obtained a verdict for $101.60, and to obtain a review of the order and judgment denying its motion for a new trial is the purpose of this proceeding.

On the trial, the defendants, over the objection of plaintiff, were permitted to introduce parol testimony tending to prove that the note in controversy was given for the sole purpose of showing the amount of unsold goods which the defendants had belonging to plaintiff; that it was the distinct agreement between the parties, when the note was...