Avery & Sons v. Miller , 86 Ala. 495 ( 1888 )

STONE, C. J.

We are not inclined to question the correctness of the decision in Day v. Thompson, 65 Ala. 269, and many other authorities which assert the same principle. It is certainly the law, and rests on the soundest reason, that when parties make, a contract, and reduce it to writing, neither party will be heard, even as between themselves, to set up or prove that there was an oral, contemporaneous agreement that the contract shall have effect different from the legal import of the language intentionally employed. This rule, however, does not prevent the correction of mistakes made, when it is clearly shown that the writing does not express what the parties intended. As we understand this record, the case is not controlled by the rule declared in Day v. Thompson. True, Lewis testifies that Pogue kvas indebted to Avery & Sons, and that he, Pogue, brought to him the note of Whitten, payable to Miller and indorsed by him in blank, and traded it to him in discharge of Pogue’s debt. He testifies further, that when this took place, he had no notice that Miller had any interest in the note. Lewis was the agent and collector of Avery & Sons. But the testimony of Pogue and Miller is directly opposed to this. Pogue’s testimony was weakened by the cross-examination, but nothing was shown to impair the force of Miller’s evidence. They testified that the note was payable to Miller, and in his possession, but that Pogne owned a half interest in its proceeds. The note was not due, and both Miller and Pogne were willing that the note should be disposed of for money at a discount of ten per cent. That it might be offered for sale to a bank, Miller indorsed it in blank, and, according to their testimony, they told Lewis what were their several interests, and what rate of discount they were willing to submit to, in order to have it cashed. They then intrusted the note to him, that he might procure its discount in bank, and if he succeeded, Pogue agreed that Lewis might apply his half of the proceeds to the debt he owed Avery & Sons. This is the clear unmistakable testimony of Miller and Pogue, and they deny that the note was traded to Lewis, either absolutely or conditionally. If their version of the transaction be the true one, they only constituted Lewis their agent to procure the discount of the note, with a promise by Pogue that, if successful, his share of the proceeds should go to Avery & Sons. This case, on their testimony, does not fall within the rule which disallows oral proof to vary the terms of a written contract. To hold that it does, would force us to apply the same principle to every case, where a paper- similarly indorsed is placed in the hands of an attorney, or other agent,, for collection. 1 Dan. Neg. Instr. § 721; Herrick v. Carman, 10 John. 224; Dale v. Gear, 38 Conn. 15; s. c., 39 Ib. 89; Hamburger v. Miller, 48 Md. 317.

We agree with the chancellor, that the weight of the testimony shows that Avery & Sons never acquired any interest in the note, but only a right to half of its proceeds, if it had been discounted. For that purpose alone the note was placed in Lewis’ hands, not as owner, but as agent. When he failed, it became his duty to return it to Miller and Pogue. If he desired to acquire a right to Pogue’s interest, that was a subject he might have negotiated about. He is not shown to have, done so, and hence fails to show any interest whatever in the note.

Affirmed.