Westeman v. Krumweide

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: GILFILLAN
• Citation: 15 N.W. 255,30 Minn. 313
• Decision Date: 19 March 1883
• Parties: WESTEMAN v KRUMWEIDE AND ANOTHER.

30 Minn. 313
15 N.W. 255

WESTEMAN
v
KRUMWEIDE AND ANOTHER.

Supreme Court of Minnesota.

Filed March 19, 1883.

[15 N.W. 255]

Appeal from order of district court, county of Le Sueur.
T. W. Hammond and H. J. Peck, for appellant.

R. H. McClelland, W. C. Odell, and W. H. Leeman, for respondents.

GILFILLAN, C. J.

Action on a note to be paid in chattels, made by defendants Krumweide and Heil, payable to plaintiff. On its face the note is complete, there being nothing to indicate that any one else was to sign it, or that it was not to take effect as to both makers immediately on delivery. The defendant Heil alleges as a defense in substance that he signed the note as surety; that, at the time of signing, it was agreed between him and plaintiff that the latter should procure to it the signature of one Gehring as a surety, and, unless Gehring signed it, it should be null as to Heil; and that the note was delivered to plaintiff for the purpose of getting Gehring's signature; and that Heil was to incur no liability until Gehring should sign, and that he did

[15 N.W. 256]

not sign it. On the trial Heil offered and was permitted, against plaintiff's objection to its competency, to prove by parol the defense thus alleged. The competency of such evidence is the only question in the case.

The objection to the evidence is that it is an attempt by parol to vary the effect of a written contract. The case comes to this: Where a written, unsealed contract is signed and delivered to the proper party, purporting on its face to go into effect at once and absolutely, may it be shown by parol that the parties intended it to be effectual at some other time or upon the happening of some contingency not expressed in it? May it be shown by parol that the delivery was in the nature of an escrow, to become an actual, effectual delivery on the happening of some future event? As to instruments under seal the authorities are pretty uniform (though there are some to the contrary) to the effect that one cannot be delivered in escrow to the party in whose favor it runs, and that upon a voluntary delivery to such party by the one executing it, it takes effect absolutely, and parol evidence is inadmissible to show that it was intended to take effect only on the happening of some contingent event, where it is not so expressed by its terms. But the great majority of the cases make a distinction between instruments under seal and those not under seal, holding as to the latter that parol...