Estate of Winzenried v. Winzenried ( 1917 )

Rosenberry, J.

The facts are as follows: A. E. Winzero-ried gave to his father a note of which the following is a copy:

“$4,000. Waukesha, Wis., July 17, 1912.

“One year after date I promise to pay to the order of B. Winzenried four thousand dollars at the Waukesha National Bank of Waukesha, Wis.

“Value received, with interest at five per cent, per annum, payable semi-annually, until paid.

“No. 4461. A. E. WlEZEETRIED

“Due July 17, 1913.”

It appears without dispute that prior to that time Benedict Winzenried had indorsed notes for his son which amounted on the date of the note to $4,000. There were two witnesses to this transaction, the claimant, A. E. 'Winzenried, and Mr. Estberg, an officer of the bank. The claimant testified:

“This note for $4,000 we were speaking about was drawn up at the Waukesha National Bank. At that time my father gave the money to Mr. Estberg for me. He insisted upon my signing this note before he paid Mr. Estberg. I found among my father’s effects a copy of this note.”

Mr. Estberg testified in regard to the transaction as follows :

“There was some money put into our bank- to discharge a note made by A. E. Winzenried and signed by his father for $4,000. At that time there was a note made running from A. E. Winzenried to his father. I have that with me. This is a regular, negotiable, promissory note. This paper or note [set out above] is the note that was given there by A. E. Winzenried to his father at the time that he was speaking about. It was left with, us after it was executed for collection. He never gave us any instructions at any time to turn this note over to his son A. E. Winzenried. It is not indorsed' by him.”

The note was produced upon the trial by Mr. Estberg.

A. E. Winzenried also testified:

“At that time [time of transaction at the bank] I signed some other paper. I signed a paper saying that I had to pay interest. I do not remember reading that paper. This paper was simply to pay interest and I paid that at the bank.”

It was undisputed that the claimant had paid three annual instalments of interest. This is all the direct testimony as to the transaction.

The testimony of Meta Kurtzhals, a daughter of Benedict Winzenried, Emma Winzenried, the wife of the son William Winzenried, Agnes Gowans, the bookkeeper for A. E. Win-zenried, and that of Daniel Schley and George Schley, was to the effect that some time after the note was given Benedict Winzenried made statements to the effect that he had given Adolph .(A. E. Winzenried) $4,000, on which he was to pay interest until he (Benedict) died, to even him up with the rest of the boys.

The trial court ordered judgment for the objectors notwithstanding the verdict of the jury. The only question presented is, Did the trial court err in so doing ?

Appellant claims that judgment should have been rendered on the verdict (1) upon the theory that parol evidence was admissible to prove that the instrument was never actually delivered, but was deposited conditionally and for a special purpose only, under the provisions of sec. 1675 — 16, Stats.; (2) that the evidence tending to establish a gift of the $4,000 does not contradict oí vary the terms of the note.

The trouble with the first proposition is that there is no evidence in the case which establishes or tends to establish the fact that the note was conditionally, delivered. The delivery, according to the undisputed testimony, was absolute. The note passed from the son to the father, and by the father was left with the bant for collection.

The evidence, so far as it tends to establish the fact that the father intended a gift, is in direct contradiction of the terms of the note, by the plain terms of which the son was to pay the amount thereof to his father.

The cases of Pirie v. Le Saulnier, 161 Wis. 503, 154 N. W. 993; Pritchard v. Pritchard, 69 Wis. 373, 34 N. W. 506; and Taylor v. Thieman, 132 Wis. 38, 111 N. W. 229, are not authority to the proposition that parol evidence may be received to contradict or vary the terms of a written instrument. In the cases cited there was evidence of prior contract. Evidence as to statements made by the deceased was admitted in each case to corroborate and establish the fact that a contract was made, and in those cases there was no instrument in writing which stated and determined the relation of the parties. That evidence of oral statements made by the donor subsequent to the making of the writing in question is not competent to contradict the terms of the writing rests upon elementary principles so. familiar that the citation of authority is needless. If there had been any attempt to transfer the title to the note, such as by indorsement and conditional delivery, subsequent statements of the donor might be received for the purpose of corroborating and establishing the fact that such transfer was made. There is no proof of any circumstances of that character in this case. We think the trial court was clearly right in entering judgment for the objectors notwithstanding the verdict.

By the Oourt. — Judgment affirmed.

Esohweileb, J., dissents.