
    Jerome Hutchinson v. Harvey Hutchinson.
    
      Bills and notes — Parol evidence — Replevin—Damages.
    1. Where the giving and taking of a promissory note are the-deliberate acts of the parties, with full knowledge of the contents of the instrument, and the note is not tainted with any fraud, parol evidence is inadmissible to change the terms of payment.
    2. In replevin for a span of horses, for the purchase price of which-the defendant has given his promissory note, which is the only written evidence of the contract, it is competent for the plaintiff to show that the note was not received in payment, and that the title to the horses was to remain in him until the purchase price should be paid.
    ■3. In replevin for a span of horses, the proper measure of the defendant’s damages is the value of the use of the horses during the time he has been deprived of their use.
    Error to Muskegon.' (Dickerman, J.)
    Argued November 1, 1894.
    Decided December 7, 1894.
    Replevin. Plaintiff brings error.
    Reversed.
    Tbe facts .are stated in tbe opinion.
    
      Brown é Lovelace, for appellant.
    
      Jerome E. Turner, for defendant.
   Grant, J.

In April, 1890, plaintiff leased bis farm to Ris son, and at tbe same time sold bim a span of borses, wbicb are the subject of controversy in this suit. Tbe price was $300, for wbicb defendant gave bis promissory note dated April 1, 1890, due April 1, 1893, wbicb was tbe only written evidence of tbe contract. Plaintiff ■claimed, and bis evidence sustained bis claim, that tbe title was to rest in him until tbe purchase price was paid; that the note was given and received as a mere memorandum; that defendant was to pay $100 per year, should treat the team well, and use it only for farm purposes; that be bad made no payments, and bad maltreated tbe team. Tbe verdict was for tbe defendant for tbe return of tbe property and $350 damages.

1. The court instructed tbe jury that parol evidence was not admissible to change tbe terms of the payment. Tbe charge was correct. Tbe note was not tainted with any fraud on tbe part of defendant. Tbe giving and taking were deliberate acts of tbe parties, with full knowledge of the contents of the instrument. Its legal effect was-therefore binding upon both, and fixed the time of payment. The wisdom of the rule conspicuously appears in this case, where the parties radically disagree upon their conversations at and prior to the date of the note. In such cases the unambiguous writing must control.

2. It was competent to show'that the note was not received in payment, and that the title should remain in the plaintiff for the purposes claimed by him. Upon this point the case was submitted to the jury under proper instructions. A serious error, however, was - committed in admitting evidence of the defendant’s damages, sustained by him between the time of the seizure under the writ and the trial. He testified under objection and exception that he was damaged to the amount of $800. The proper measure of damages was the value of the use of the team during the time the defendant was deprived of its use.

3. Defendant’s counsel went outside of the record and of the limit of legitimate argument in commenting to the-jury upon the wealth of the plaintiff and facts which did not appear in evidence.

Other errors are alleged, but, inasmuch as they are not-likely to arise upon a new trial, they need not be mentioned.

Judgment reversed, and new trial ordered.

The other Justices concurred.  