
    Nelson Beardsley, App’lt, v. Arthur M. Gaylord et al., Respt’s.
    
      {Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    1. Evidence—Parol—To vary terms op written instrument.
    G. purchased some real estate from L., and as part payment executed and delivered to him a bond and mortgage for $4,784. G. being about to enter into partnership with H. and another, conveyed the property to them, and took back a purchase money mortgage for $5,000. G. applied to B. for a loan on the second mortgage, which was refused, and L. then, assigned his mortgage to B. by an assignment absolute in terms, and took in. exchange the $5,000 mortgage. B. thereafter brought suit on a bond made by G. and wife, the defense to which was that the assignment above mentioned was absolute, and by it the bond had been paid. Parol evidence of such transaction was objected to by plaintiff because it was in conflict with, a statement in writing, put in evidence, signed by G., specifying certain payments made to him by B., and that the latter held the mortgage as security therefor. Meld, that such oral evidence was competent. •
    2. Same.
    In such action, evidence of G. that the paper was not read over to him,, but was stated to be a mere receipt, was competent.
    Appeal by the plaintiff, Nelson Beardsley, from a judgment entered in Cayuga county on the 8th day of January, 1892, in favor of the defendants, on a verdict of the jury at circuit.
    
      James R. Cox, for app’lt. F. D. Wright, for resp’ts.
   Macomber, J.

This action was brought upon a bond given, by the defendants for the sum of $1,000, April 6, 1880. The defense interposed was payment. Upon the trial at the circuit, the-jury rendered a verdict in favor of the defendants on that issue. As the case comes up on a bill of exceptions only and not upon the facts, the evidence being only in part returned, this verdict must be deemed to be conclusive as between the parties unless a supposed error, committed by the court at the trial and now relied upon by the learned counsel for the plaintiff, is fatal to it.

This plea of payment was made out through somewhat complicated transactions, all of which it is not perhaps necessary to rehearse. But it appears that the defendant, Arthur M. Gaylord,, bought some real estate in Union Springs, known as the foundry property, from one Henry H. Lewis, and as part of the consideration for such purchase he executed and delivered to Lewis a bond and mortgage in the sum of $4,784.

Being about.to take into partnership certain persons, it was arranged that Gaylord should convey the property to two of such persons by the name of Howes, and take back from them a purchase money mortgage in the sum of $5,000, which, of course,, would be a second mortgage, and inferior as a security to that held by Lewis. The deed and the bond and mortgage were duly executed. It was then further agreed that Gaylord should raise money on the $5,000 mortgage for a working capital of the new co-partnership.

In such condition of affairs, Gaylord applied to the plaintiff for a loan upon the second mortgage. The plaintiff refused to make such loan because the mortgage was a second mortgage. It was then agreed that Lewis should make an assignment to the plaintiff of the $4,784 mortgage, which bore date the 27th day of August, 1884, and that he should take in exchange therefor the'$5,000 mortgage, the payment of which was. to be guaranteed by one of the co-partners of Gaylord by the name of Chamberlain. A payment of $800 in cash was made to Lewis in this transaction. The plaintiff finally accepted an assignment which was absolute in terms, of this $4784 mortgage, and paid to the defendant Gaylord, at the time of such assignment, the sum of $900. The sole question upon the trial was Whether this assignment, which was absolute in its terms, was in fact absolute, or whether it was taken to secure such moneys as the plaintiff should see fit to advance to Gaylord from time to "time. Upon this question the verdict of the jury was rendered dor the defendants.

But it is claimed by the learned counsel for the appellant that the oral evidence of such transaction upon which the verdict was rendered was inadmissible because it was in conflict with a statement in writing put in evidence signed by the defendant, Arthur M. Gaylord. That writing is as follows: “Mortgage of Arthur M. Gaylord to H. H. Lewis, to secure payment -of $4,784, and interest, has been assigned to N. Beardsley at my request. Mr. Beardsley has advanced money on account of ;said assignment as follows: September 18, 1884, $900, and October 7,1884, $350, and also October 29, 1884, $250, and he also holds a mortgage for $1,000 and interest from the first of April 1884, made by said Gaylord and wife, making $2,500, principal .and interest on both sums from above dates, and as security therefor, said Beardsley holds said mortgage dated October 29, 1884. ■(Signed) Arthur M. Gaylord.”

It is argued by the learned counsel for the appellant, that this paper writing is conclusive against the defendant, and that no oral testimony was admissible to vary its terms. But it seems to us, however, that the paper is not a contract in any respect; nor did it induce any action on the part of the plaintiff which ihe defendant should not be permitted to repudiate. It is a ■mere statement in writing of certain facts which it is not contended by the plaintiff existed in the transactions between the parties. This paper was laid before the jury in a charge of much care, and under evidence which, as it seems to us, was competent.

We think that the evidence of the defendant, that the paper was not read over to him, but was stated to be a mere receipt, was competent under the circumstances, for the simple reason that it was not in fact, nor did it purport to be, a contract between the parties. It did not form and could not have formed any issue presented by the pleadings.

For this reason we think that the evidence complained of was admissible, and that the judgment entered upon the verdict should be affirmed.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.  