Langan v. Langan

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:— *193 hereof, upon two thousand dollars of said note, and thereupon J. A. Langan agrees to give a bill of sale to T. F. Langan for one thousand sheep, the property of J. A. Langan, which are now in the possession of T. F. Langan, and a deed to all his (J. A. Langan’s) rights in the homestead of Honora Langan, and one fourth interest in the Hezekiah M. Martin tract of land, and the half-interest in two express-wagons, and all the improvements on said ranch, the title of said sheep and ranch to remain as they are at present until the performance of said agreement, to wit, the payment of the foregoing note according to the tenor thereof, or the security of the payment as herein provided by mortgage, etc.

*192 “ Merced Co., December 3, 1884.

“ Sixty days after date, I promise to pay J. A. Langan the sum of three thousand ($3,000) dollars, gold coin of United States, for value received.

“ Thos. F. Langan.”

“ It is further agreed that if at the end of sixty days T. F. Langan gives collateral security to J. A. Langan, and pays one per cent per month for the payment of two thousand dollars, by a mortgage upon the homestead of Honora Langan and Hezekiah M. Martin tracts of land, and otherwise secures the payment of the same, then J. A. Langan agrees to take said security, and grant further' time, not to exceed two years from the date

*193 “ This agreement has nothing to do with any former agreements made by said parties, but such other agreements are to be settled according to the tenor of themselves; namely, the three hundred dollars for rent of sheep and the one thousand dollars balance due on sheep sold by J. A. Langan to T. F. Laugan last year.

“ J. A. Langan.

“ Thos. F. Langan.

“ Witness: W. J. Stockton.”

This writing is to be construed as an agreement on the part of the plaintiff, J. A. Langan, to sell to the defendant T. F. Langan the property therein mentioned for the price and upon the terms therein stated; and this agreement to sell said mentioned property, and compliance with it, is to be deemed full consideration for the note therein set out, precisely as if the agreement had so recited in words, and therefore the court erred in admitting oral evidence to show that the land warrants, referred to in the evidence, were a part of the consideration of this note. This ruling of the court is not sustained by the rule which permits parol evidence of a consideration different from that named in the contract or deed, or the existence of a separate oral agreement constituting a condition precedent to the taking *194 effect of a written contract obligation. The effect of the oral evidence here was to add to and vary the terms of the written agreement by proving a contract to sell other and different property from that described in the agreement. The opinion of the court in Hubbard v. Marshall, 50 Wis. 327 , is in point here:—

“The rule which allows the maker of a promissory note to show, in an action upon it, a failure or partial failure of consideration is not sufficiently broad to cover this case. Here we have written instruments which set-out particularly the consideration of the notes in suit; to wit, the assignment of notes and mortgages, and of a contract to convey lands and to sell timber upon other lands. The right to prove a failure of consideration would admit evidence of the failure of any consideration expressed in the writings, as that the title to any of the property thus sold or assigned had failed, but does not go to the exent of allowing proof of an additional com sideration not expressed in the writings, and a failure thereof. To hold otherwise would be to destroy the rule which prohibits parol evidence to contradict or vary written instruments. The instrument signed by plaintiff and accepted by the defendant, and the notes signed by the latter and delivered to the former, constitute an agreement in writing. The terms of the agreement are clearly expressed, and the writings contain no clause from which it may be inferred that the parties did not intend to incorporate in them the contract just as it was made, and the whole of it.”

2. In the bill of exceptions the plaintiff specifies that the decision of the court was against law, because certain findings are contradictory, and this is one of the grounds upon which a new trial was asked. The motion should have been granted, for this reason. Findings 7 and 11, which are necessary to support the judgment in favor of defendants, are in conflict with findings 4, 5, and 6, as we construe them, those first named being *195 to the effect that the consideration of the note referred to in the complaint is as stated in the answer of defendants, while findings 4, 5, and 6 are, that its consideration is (he balance due upon the note of December 3, 1884, and that the consideration of that note was the sale of the property described in the written agreement above set out. In this condition of the findings, it cannot be said that they determine the issues of fact arising in the case, and a judgment based upon such findings is a decision against law, for which a new trial may be had. (Knight v. Roche, 56 Cal. 15 .)

3. The appeal from the judgment in this case was taken more than one year after the date of its entry. The parties entered into a stipulation, thus extending the time for appealing from the judgment, and the respondent has not asked that the appeal be dismissed. The court, however, is not bound by this stipulation.

The appeal from the judgment is dismissed. Order denying plaintiff's motion for a new trial reversed.