Langan v. Langan
Before: Beatty, Garoutte, Harrison, Haven, McFarland, Paterson
Synopsis
Consideration of Note — Written Agreement — Parol Evidence.— Although parol evidence is admissible of a consideration different from that named in a contract or deed, or to show a separate oral agreement constituting a condition precedent to the taking effect of a written obligation, yet oral evidence which has the effect to add to and vary the terms of a written agreement, which was the consideration for a note, by proving a contract to sell other and different property from that described in the agreement, is not admissible in an action on the note.
Id.—Failure of Consideration — Note Given for Prior Note — Written Agreement as to Consideration of First Note. — Oral evidence that certain land-warrants were a part of the consideration of a note, and that such consideration had failed, is inadmissible in an action upon the note, where it appears that the note was given in consideration of a prior note, and that the prior note had a contract attached to it describing the note, and containing an agreement on the part of the payee of the note to sell to the maker certain other property described therein, compliance with which was to be the full consideration for the note.
New Trial — Decision against Law — Contradictory Findings. — A judgment based upon contradictory findings is a decision against law, for which a new trial may be had.
Appeal — Dismissal — Stipulation Extending Time. — An appeal from a judgment taken more than one year after the date of its entry will be dismissed by the appellate court on its own motion, notwithstanding a stipulation between the parties extending the time.
Opinion — Haven
De Haven, J. — Action for the balance alleged to be due upon a promissory note executed by defendant's to plaintiff on April 25, 1885, for the sum of two thousand dollars.
The answer alleges that in December, 1884, the defendant Thomas F. Langan purchased from plaintiff an undivided one-fourth interest of all the copartnership property belonging to a firm of which plaintiff was a member, for the sum of three thousand dollars, and in payment thereof then executed to plaintiff his promissory note for said sum; that he afterwards paid one thousand dollars thereon, and then took up said note, and he and the other defendant, his wife, gave to plaintiff the note mentioned in the complaint for the balance due on account of said purchase; that is, as we construe the answer, for the balance due upon the promissory note executed in December, 1884. The answer then, in a separate defense, alleges that a part of the copartnership property purchased by defendant consisted of two land-warrants, and that said warrants were a part of the consideration for which the note referred to in the complaint was given; that plaintiff agreed to locate them upon lands, and convey said lands so located thereunder, to defendant T. F. Langan; that plaintiff has located the [192]same, and refuses to make a conveyance of the land so located to defendant, and by reason thereof, defendant has been damaged in amount equal to the value of said land. There was another partial defense interposed, but this was found against the defendants, and needs no consideration. The court below found the allegations of defendants’ answer, in relation to the land-warrants, to be true, and .judgment was rendered in favor of defendants for their costs. The plaintiff appeals from this judgment, and also from an order denying his motion for a new trial.
1. It is apparent from the answer of defendants, and the court so finds, as we read findings Nos. 4, 5, and 6, that the note mentioned in the complaint was given in consideration of the balance due upon the note for three thousand dollars, executed in December, 1884. It there, fore became a material question upon the trial to determine what was the consideration for this original note.
Upon the trial, it appeared that this note of December, 1884, had a-contract attached to it, written on the same sheet of paper, and was executed in duplicate, each of the parties retaining a copy. This note and agreement is in the=>following words:—
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