Centanhi v. Rhodes ( 1919 )

OPISIOI,

St. Paul jug*.

Plaintiff foreclosed upon defondant'a property under a Mortgage nade and recorded June 17th, 1918. Intervenora olalm a preference, out of the prooeede hy virtue of an alleged meohanloa lien superior in rank hut of later origin.

question is whether the privilege was recorded in tine to aoquire priority over the preexisting mortgage under C. C. 3274 reading as follows;

"xxx {A privilege) shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage unless the aot or other evidenoe of indebtedness is recorded within seven days from the date of the aot or obligation of Indebtedness, ato.

The evidenoe shows that on Sec 8, 1914 the intervenora submitted to defendant a written offer to do certain plumbing work on the premises. But as this offer (when accepted) was not recorded until more than seven days after the date above given, to wit, not until January 22, 1915, intervenors offered to. prove that the offerees not accepted by defendant until January 19, or within^days of the date on whioh it was recorded. To which offer of proof plaintiff objected on the ground that it tended to vary a written instrument.

She objection was properly overruled. Even between the parties thereto it is generally permissible to show by parol the true date of a written Instrument regardless of any date it may or may not bear. Belot vs Donovan, 1 Rob 257; Kenner vs Creditors, 1 La 120; 4 An 262, 500; 14 An 793; 112 La 740; See also 17 Cyc 689. But the fact is that the rule relatdwe to parol evidence not being admissible to vary a written instrument applies only between the parties thereto and not in a controversy with a third person. Covington Lumber Co vs Stef, 12 Ct of App 237; and 19 Cyc 749.

The evidence being admissible, it was shown by the affirmative testimony of four witnesses that the defendant affixed his own signature.to the.offer, in token of his acceptance thereof, on January 19th as aforesaif.

How it ia true that the work was begun a few Saya p(taller under verbal inatruotiona from defendant to go ahead; but this la explained by defendant and one other witness as having been nsoessary because of the order of the Board of Health, and the wowk not then progressing under the oontraot; for the defendant had hoped to eliminate some part of it, and had finally signed the oontraot for a lump sum only whne he found that no part of the work oould be dispensed with. Otherwise the intervonor's claim would have been on quantum meruit and might have been reoorded only after the work had bean completed and the amount thereof become known. Greater N. O. Homestead vs Hoffman, No. 7277 of our docket; Brashear vs Copperage Co, 50 An 587.

Under the oiroumstanoe# the recordation of the claim appears to us to have been in time.

Judgment Affirmed.