
    No. 679
    BACH v. PHELPS
    No. 19908.
    Supreme Court
    On motion to certify.
    Dock. June 18, 1926;
    4 Abs. 404.
    147. BILLS AND NOTES — May an oral agreement concerning the payment of an unconditional promissory note be admitted to show the manner in which said note was to be paid, when the note remains in the original payee’s possession?
   This action was commenced by Frederick Phelps, in the Crawford Common Pleas against Jacob Bach, Lester Bach, Florence Bach, Sarah Bach and The Jacob Bach Company for conversion of thirty shares of capital stock issued by the Jacob Bach Company.

It appears that Phelps was in the employ of the company and while so employed executed and delivered to Jacob Bach a promissory note for $3000 due a year from date. This note was executed pursuant to a written agreement between Jacob Bach and Phelps whereby Bach agreed to sell and Phelps to buy 30 shares of stock at $130 per share.

Phelps claimed that it was understood that the note was to be paid out of profits from the company. Upon default of payment of the note Bach notified Phelps of the rescission of the contract and transferred the stock to himself, the stock having been left in Bach’s possession, as security for payment of the note.

The judgment of the Common Pleas in favor of Jacob Bach was affirmed by the Court of Appeals. No reply was filed by Phelps to a cross petition filed by Bach asking for $1000 damages by reason of the depreciation of the stock and on this point the Appeals reversed the Common Pleas which had totally ignored the fact that no pleading had been filed.

Attorneys — Edward Volrath and C. F. Shaber for Bach; W. C. Beer and E. J. Myers for Phelps et; all of Bucyrus.

Bach in the Supreme Court contends:

1. That the court erred in permitting parole evidence to vary the terms of the note concerning the method in which that note was to be paid.

2. That the contract in effect allowed the corporation to pay out of profits the note of one of the stockholders.

3. That he is an unpaid seller and was therefore entitled to rescind the contract.  