349 Ambiguity Explained. 345 § 1897. Parol evidence is admissible to explain an ambiguity apparent on the face of the paper; especially where there is a disagreement between the note and a contemporaneous collateral mortgage for the same debt.34 So, parol evidence is admissible to show that a note, imperfectly described in a collateral mortgage, is the one referred to; 347 or to identify the wife of one who signs a note as "A. B., Agent for Wife"; 348 or to explain abbreviations used in a note; or to identify the payee of a duebill, which names none; or to show the date of a note, which is badly written and illegible; 351 or to explain the word "duplicate" in a note; 352 or that the person countersigning a bank bill was the cashier (as required by law); 353 or that the place of payment designated as "my office" was in H.; 354 or that A. was the payee intended in a note by A. and B. to the "order of myself"; 355 or that "without recourse" between two indorsements belonged to the last one; or to explain the words, "Charge the amount against me and my share of my moth 350 356 345 Lockhard v. Avery, 8 Ala. 502; Kelly v. Bronson, 26 Minn. 359, 4 N. W. 607. 346 Payson v. Lamson, 134 Mass. 593. 847 Aull v. Lee, 61 Mo. 160; Stowe v. Merrill, 77 Me. 550, 1 Atl. 684. So, in a receipt and agreement to extend "certain notes we hold." Bell v. Martin, 18 N. J. Law, 167. 348 Rawlings v. Robson, 70 Ga. 595; or to show an undisclosed principal, where the note was signed "A. B., Agent,” Dessau v. Bours, 1 McAll. 21, Fed. Cas. No. 3,825; or to charge an agent individually, although he accepted a bill as "agent of B.," Hardy v. Pilcher, 57 Miss. 18. And see § 131 et seq., supra. 349 First Nat. Bank of Springfield v. Fricke, 75 Mo. 178. 350 Nicholas v. Krebs, 11 Ala. 230; or of a sealed note, Barkley v. Tarrant, 20 S. C. 574. 851 Fenderson v. Owen, 54 Me. 372. As to correction of dates where there is no estoppel, see Paige v. Carter, 64 Cal. 489, 2 Pac. 260; Barlow v. Buckingham, 68 Iowa, 169, 26 N. W. 58; Burns v. Moore, 76 Ala. 339. And see § 77, supra. 352 McCann v. Preston, 79 Md. 223, 28 Atl. 1102. 99 358 er's estate," "357 or "what moneys may be due me," or "to be paid out of the last payment"; 359 but not to explain that "legally due" was intended for "equitably due." 360 A frequent ambiguity is found in the manner of execution by an agent or by the officer of a corporation. The availability of parol evidence to explain such signatures has been already discussed.361 In addition to the cases there cited, the following may be referred to as holding such evidence inadmissible to charge the alleged agent individually, or to discharge him.363 On the other hand, parol evidence has been admitted to discharge the agent from individual liability, and to charge the principal. 365 Maturity Extended by Parol Evidence. § 1898. Parol evidence is not admissible to show a contemporaneous verbal agreement extending or changing the time of maturity 357 Schmittler v. Simon, 114 N. Y. 176, 21 N. E. 162. 358 Capron v. Anness, 136 Mass. 271. 359 Proctor v. Hartigan, 143 Mass. 462, 9 N. E. 841. 360 McDuffie v. Magoon, 26 Vt. 518. 861 See § 147, supra. 362 Falk v. Moebs, 127 U. S. 597, 8 Sup. Ct. 1319 (note signed "P. C. Co., A. B., Sec. & Treasr.," to the order of "A. B., Sec. & Treas.," and so indorsed). 363 Matthews v. Mattress Co., 87 Iowa, 246, 54 N. W. 225 (note, "We promise," etc., signed "D. M. Co., J. K., Pres."). 364 "We promise," etc., "A. B., Pres. C. D., Secy." Brunswick-Balke-Collender Co. v. Boutell, 45 Minn. 21, 47 N. W. 261; "We promise," etc. "A. B., Pres. Chicago R. R. Co. C. D., Secy.," and corporation seal. Scanlan v. Keith, 102 Ill. 634. "The W. S. Soc. agrees," etc. "A. B., Gen. Supt." Frankland v. Johnson, 147 Ill. 520, 35 N. E. 480. "I promise," etc., "A. B., Pres. O. F. Assoc. C. D., Secy." Benham v. Smith, 53 Kan. 495, 36 Pac. 997 (with help of recitals in collateral mortgage). "We, the trustees of the M. Grange, promise," etc. "A. B., C. D." Simanton v. Vliet (N. J. Err. & App.) 40 Atl. 595. 365 Note signed "A. B., Agent," Sykes v. Temple, 69 Hun, 448, 23 N. Y. S. 425; or "A. B., Trustee." Souhegan Nat. Bank v. Boardman, 46 Minn. 293, 48 N. W. 1116; or by several designated as "president" and "directors" below name of the corporation. Kline v. Bank, 50 Kan. 91, 31 Pac. 688; or indorsed "A. B., C. D., as Directors of the K. K. Co.," Keokuk Falls Imp. Co. v. Kingsland & Douglas Mfg. Co., 5 Okl. 32, 47 Pac. 484. 370 371 expressed in the • 366 paper; or to show an agreement at the time of making a note that it should be renewed at maturity, 367 or paid only on the happening of some contingent event; 368 or to fix a time deferring payment where no time was expressed,369 or where it was payable "in 6 months, if desired, with interest"; or that a note payable one day after date was to be paid at a later day.3 So, it cannot be shown by parol that the note was to remain in the payee's hands, to be paid out of certain moneys which he expected to receive for the maker.372 And parol evidence is not admissible to contradict a memorandum made after the note was signed, but before its delivery, and forming part of the original contract.373 So, 366 Hoare v. Graham, 3 Camp. 57; Porteous v. Muir, 8 Ont. 127; Bradbury v. Oliver, 5 U. C. Q. B. (O. S.) 703; Cairo & V. R. Co. v. Parker, 84 Ill. 613; Litchfield v. Falconer, 2 Ala. 280; Doss v. Peterson, 82 Ala. 253, 2 South. 644. E. g. that a note payable at a certain time was to be paid "when the cotton crop should come in," Diercks v. Roberts, 13 S. C. 338; or when certain work was finished, Heaverin v. Donnell, 7 Smedes & M. (Miss.) 244; or not until the maker's other liability as surety for the payee was discharged, Frost v. Everett, 5 Cow. (N. Y.) 497; or until certain moneys were received, Joyner v. Turner, 19 Ark. 690; Kincaid v. Higgins, 1 Bibb (Ky.) 396; or certain goods sold, Harlow v. Boswell, 15 Ill. 56; or until the money could be made out of certain property, Ockington v. Law, 66 Me. 551; Campbell v. Upshaw, 7 Humph. (Tenn.) 185. And see § 120, supra. 367 Stiles V. Vandewater, 48 N. J. Law, 67, 4 Atl. 658; Anspach v. Bast, 52 Pa. St. 356; Wallace v. Richards, 16 Utah, 52, 50 Pac. 804; Dorsey v. Armor (Colo. App.) 50 Pac. 726; until it was convenient to pay, Kennedy v. Gaddie (Ky.) 32 S. W. 408; or to renew and not to negotiate, Heist v. Hart, 73 Pa. St. 286. 368 Wooley v. Cobb, 165 Mass. 503, 43 N. E. 497; Beecher v. Dunlap, 52 Ohio St. 64, 38 N. E. 795; Van Etten v. Howell, 40 Neb. 850, 59 N. W. 389; Slusher v. Conant (Ky.) 37 S. W. 579. 369 Only after demand, Nicholas v. Krebs, 11 Ala. 230; or on the maker's arrival at A., Thompson v. Ketchum, 8 Johns. (N. Y.) 190. But see, contra, Horner v. Horner, 145 Pa. St. 258, 23 Atl. 441; Gray v. Anderson, 99 Iowa, 342, 68 N. W. 790. 370 Citizens' Bank of Los Angeles v. Jones (Cal.) 53 Pac. 354. 371 Willse v. Whitaker, 22 Hun (N. Y.) 242; Cooper v. Tappan, 4 Wis. 362; Gibson v. Irby, 17 Tex. 173; Coughenour v. Suhre, 71 Pa. St. 462. 372 Currier v. Hale, 8 Allen (Mass.) 47; and in installments, Walker v. Russell, 17 Pick. (Mass.) 280. 373 E. g. to show that plaintiff said he would not agree to the memorandum (for payment in installments), Heywood v. Perrin, 10 Pick. (Mass.) 228. the maker of a note cannot show that the payee agreed, at the time of making, not to bring suit for a year.374 But where a note is payable one year from the death of A., with interest at 6 per cent., it may be shown that the maker agreed to pay the interest annually.375 Parol Evidence of Satisfaction. 377 379 § 1899. In like manner, a contemporaneous parol agreement cannot be shown that the note should be satisfied in bills for freight,376 or should be surrendered on receipt of a certain deed or of another note; 378 or to show that certificates described in the note as collateral were to be received at its maturity in absolute payment; or that a mortgage transferred to the holder after maturity of the note was taken as collateral only; 380 or that mortgaged premises conveyed to the holder to sell and apply were received in absolute payment; 381 or might be paid in Confederate currency,382 or by a bond,383 or in work,384 or out of a particular fund,385 or primarily 374 Schroer v. Wessell, 89 Ill. 113; Dow v. Tuttle, 4 Mass. 414; or until an account should be settled and applied on it, Mahan v. Sherman, 7 Blackf. (Ind.) 378; or until as much as possible should be obtained from the principal, Campbell v. Hodgson, Gow, 74; or so long as the interest should be paid, Church & Congregation in Second Precinct in Pembroke v. Stetson, 5 Pick. (Mass.) 506. 375 Dance v. Dance, 56 Md. 433. So that a note from husband to wife, payable one day after date, was to bear interest or not. Beaver v. Secor, 182 Pa. St. 213, 37 Atl. 991. 376 Edwards v. Jones, 2 Mees. & W. 414; or in other accounts, Bender v. Montgomery, 8 Lea (Tenn.) 586. 377 Spring v. Lovett, 11 Pick. (Mass.) 417. 378 Or a note with security. Gardner v. Matthews, 11 Mo. App. 269. Even, it has been held, with proof of tender, Hill v. Gaw, 4 Pa. St. 493; or of delivery, Burge v. Dishman, 5 Blackf. (Ind.) 272. 879 Perry v. Bigelow, 128 Mass. 129. 380 Parker v. McCrea, 7 U. C. C. P. 124. 381 Leonard v. Smith, 11 Metc. (Mass.) 330. 382 Leslie v. Langham's Ex'rs, 40 Ala. 525. evidence relative to waiver of payment. And see § 103, supra, as to parol 983 La Fayette Co. Monument Corp. v. Magoon, 73 Wis. 627, 42 N. W. 17. 384 Stein v. Fogarty (Idaho) 43 Pac. 681. 385 Mumford v. Tolman, 157 Ill. 258, 41 N. E. 617; Cashman v. Harrison, 90 Cal. 297, 27 Pac. 283; Gorrell v. Insurance Co., 11 C. C. A. 240, 63 Fed. 371. or with out of such fund,3 386 387 or in cotton out of the first picking; certain rebates, not expressed,388 or for a reduced amount in a certain contingency; or to render an express agreement for absolute payment conditional.390 389 392 So, the maker cannot show that the note was given for advances from the maker's father on an agreement at the time that it should be settled in the distribution of his estate. 3 391 Parol evidence is likewise inadmissible to show a contemporaneous agreement that an existing account or debt should be used as a set-off against it.3 But parol evidence is admissible to show whether a note is given in satisfaction of the debt or as a mere security; 393 or to show that a judgment was confessed by the maker at suit of an indorser for collateral security, and not as a satisfaction; 394 or to show a contemporaneous agreement with the indorser (the plaintiff) that the note should be charged to the maker on a contract in course of performance between him and the indorsee.39: So, a contemporaneous But see, contra, as a con 386 Moore v. Prussing, 165 Ill. 319, 46 N. E. 184. dition of delivery, Western Nat. Bank v. Wood, 64 Hun, 635, 19 N. Y. Supp. 81; McCollum v. Boughton, 132 Mo. 601, 33 S. W. 476. 387 James v. Benjamin, 72 Ga. 185. 388 Phelps v. Abbott (Mich.) 72 N. W. 3; Moody v. Shaw, 85 Ind. SS. But see § 1900, infra. See, too, § 106, supra, as to evidence to vary amount. 389 Wells v. Carr, 25 Fed. 541. 390 Penniman v. Alexander, 111 N. C. 427, 16 S. E. 408; or, conversely, Kervan v. Townsend, 25 App. Div. 256, 49 N. Y. Supp. 137; Kelsey v. Chamberlain, 47 Mich. 241, 10 N. W. 355. But see Maltz v. Fletcher, 52 Mich. 484, 18 N. W. 228, where the condition and breach constituted a failure of consideration as to the payee. 391 Porter v. Porter, 51 Me. 376. But see, consideration, Bragg v. Stanford, 82 Ind. 234; contra, as evidence of want of Buscher v. Knapp, 107 Ind. 340, S N. E. 263; although the check was given in settlement of an account rendered, Park v. Miller, 27 N. J. Law, 338. 392 Clark v. Hart, 49 Ala. 86; Eaves v. Henderson, 17 Wend. (N. Y.) 190; St. Louis Perpetual Ins. Co. v. Homer, 9 Metc. (Mass.) 39; Featherston v. Wilson, 4 Ark. 154. 393 Hale v. Rice, 124 Mass. 292; First Nat. Bank of Newcastle v. Nugen, 99 Ind. 160; Weston v. Wiley, 78 Ind. 54; Farnham v. Ingham, 5 Vt. 514. But see, contra. Moore v. Prussing, 165 Ill. 319, 46 N. E. 184. 394 Bank of South Carolina v. Myers, 1 Bailey (S. C.) 412. 395 Susquehanna Bridge & Bank Co. v. Evans, 4 Wash. C. C. 480, Fed. Cas. No. 13,635. |