Anderson v. Foglesong

The plaintiff's action is upon a promissory note executed by the defendant, a copy of which, it was alleged, was set out in the petition. According to the copy so set up, the note was due "on or before April 1, 1924."

The answer as amended admitted the execution and delivery to plaintiff of a note of like amount on the date of the note, but alleged that the note, when executed, contained an agreement that it was not to become due until what was known as the Anderson farm should be sold by the defendant, and that, after the delivery of the note, it was materially altered by erasing therefrom, without defendant's knowledge or consent, the provision that the note was not to become due until the Anderson farm was sold. It was further alleged that defendant had not yet sold the Anderson farm, and that the note was not due. The answer presented as a complete defense to the note the claim that it had been materially altered after its delivery, and a plea in abatement that the action was premature.

In a reply, plaintiff denied any material alteration of the note, and alleged that the words "this note becomes due when Anderson's farm is sold as per contract" were written on the note after its delivery, with the knowledge and consent of defendant, and that the interpretation placed upon such words at the time was that, should the defendant sell his farm before April 1, 1924, then and in that event the note should be due, but not later than April 1, 1924.

The note was on a printed form, and, as introduced in evidence, bore in writing above the signature of the appellant the words:

"This note becomes due when Anderson's farm is sold as per contract."

It is not disputed that these words are in the handwriting of one Creigher, cashier of the Truro bank. It is the contention of appellee, and the evidence on his behalf tended to so show, that they were first written upon the note by Creigher with appellant's consent at a time when the bank held the note as collateral security, and without the consent, of appellee. Appellant, although conceding that the words now appearing on the note were written by Creigher while it was in the hands of the bank, contends, and so testified, that the same words were on the note at the time he signed it, and were subsequently erased without his consent, and later rewritten by Creigher.

I. It is clear that, upon appellant's contention, as disclosed by his testimony, and repeatedly asserted by his counsel in argument, that the words now appearing on the 1. ALTERATION note are the same as those originally written OF there at the time the note was executed, his INSTRUMENTS: claim of a material alteration, pleaded as a material complete defense, must fail. According to his alterations: testimony, the note is now of exactly the same erasure and tenor and effect as when he executed it. 2 reinsertion: Corpus Juris 1220; Reed v. Roark, 14 Tex. 329 effect. (65 Am. Dec. 127); Earnest v. Woodlee (Tex. Civ. App.), 208 S.W. 963.

II. Upon the plea in abatement, there was a conflict in the testimony as to whether the words in question were on the note at the time of its execution and delivery; and appellee, having asked and secured a directed verdict in his 2. APPEAL AND favor, which he seeks here to sustain, is in no ERROR: party position to insist in this court that the note entitled as originally executed did not contain those to allege words, and that he was entitled to a directed error: verdict on the plea of abatement. The action of estoppel. the court in directing a verdict can obviously not be sustained on the theory that the words in question were not in the note as executed by appellant and delivered to appellee, in view of the conflict in the evidence on that point. The direction of a verdict can only be sustained, if at all, upon the theory that appellee was entitled, as a matter of law, to recover on the note as introduced in evidence and containing the words in question.

The language is that the note becomes due when the farm is sold, as "per contract." It is plain that the entire contract is not expressed in the writing. The writing itself so states. The contract was partly in writing and partly in 3. TRIAL: jury parol. The parties agree that there was a parol question: understanding that the maturity of the note conflict of should be in some manner affected by the sale of evidence. the farm, and that the clause in question was written in the note in pursuance of such an agreement; but they do not agree as to when the agreement was made, or as to its terms. The language of the note as it stands is ambiguous, but it refers to the contract. It is clear, in this situation, that the language found in the note is not to be looked to alone to determine when it matures, but that this must be determined from the contract to which the note refers. Sieberts v. Spangler, 140 Iowa 236; Sellers v. Dickert,185 Ala. 206 (64 So. 40). Testimony was introduced by both parties without objection, as to what the actual agreement was.

If the words in controversy were first written in the note by the cashier of the bank while the bank held it as collateral security, and in pursuance of an agreement that the sale of the farm, if made before April 1, 1924, should accelerate the maturity, but not postpone it beyond that date, as the testimony on behalf of appellee tended to show, the plea in abatement must fail, and plaintiff would be entitled to recover. But, if the words were in the note at the time of its execution by defendant, and were in pursuance of an agreement then made that it should not mature until the farm was sold, as the testimony on behalf of appellant tended to show, the action was premature, and the plea in abatement was good. Upon this point the testimony was in sharp conflict, and the question was clearly one for the jury.

In any view of the case, on the issues presented by the plea in abatement the question was for the jury, and the court was in error in directing a verdict for the plaintiff. There is no claim that the note was due, under the doctrine of Dille v. Longwell,188 Iowa 606, in a reasonable time.

The cause is — Reversed and remanded.

De GRAFF, C.J., and STEVENS and FAVILLE, JJ., concur.