
    Williams v. Aylesworth.
    
      (Supreme Court, General Term, Fourth Department.
    
    September, 1889.)
    Evidence—Parol, to Vary Writing.
    , In an action on a note on which is indorsed, “I guaranty the collection of the
    within note, ” evidence is not admissible to prove that defendant, at the time of indorsement, verbally warranted that the note was good, and would be paid at maturity. Martin, J., dissenting.
    Appeal from circuit court.
    Action by Hanson Williams against Eliphalefc Aylesworth on the following note: “$100.00. Peterboro, April 10th, 1875. Five years from date we jointly and severally promise to pay. E. Aylesworth, or bearer, the sum of one hundred dollars, with annual interest, for value received. Gurnsey 1 Hardy. Bertram.Hardy.” Indorsed: “Peterboro, March 9th, 1879. I guaranty the collection of the within note. E. Aylesworth. ” Judgment was rendered for plaintiff, and defendant appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Smith & Haskell, for appellant. Tracy, McLennan & Ayling, for respondent.
   Merwin, J.

The plaintiff was allowed to prove, in substance, that the defendant verbally warranted that the note was good, and would be paid at maturity. This varied the written agreement represented by the written guaranty of collection. In Van Brunt v. Day, 81 N. Y. 251, a paroi agreement was allowed to be shown, because it did not qualify or change the defendant’s written guaranty. In the present case it would, and therefore would be inadmissible. There is, I think, as the case stands, no question of fraud in it. That question is not presented by the pleadings, and was not submitted to the jury. In the absence of fraud, the writing cannot be contradicted or varied. The plaintiff had, as the court held, lost by his loches his remedy on the written guaranty. He should not, in order to avoid this result, be allowed to prove an inconsistent paroi agreement on the same subject. Upon this ground I favor a reversal.

Hardin, P. J., concurs. For opinion, see 8 N. Y. Supp. 113.

Martin, J.,

(dissenting.) On the 10th and 28th of March, 1879, the defendant purchased of the plaintiff certain personal property, for which he agreed to pay $96.25. By the terms of the sale he was to pay the money for the property thus purchased, or give his note for a short time. The property was delivered to the defendant in March, 1879. In the forepart of April, and after such sale and delivery, the parties entered into an arrangement whereby the defendant delivered to the plaintiff a note made by Gurnsey and Bertram Hardy, given to secure the payment of the sum of $100; the defendant guarantying the collection of the same. The plaintiff paid the defendant $3.75, the difference between the amount of such debt and note. Whether the plaintiff accepted this note and guaranty in payment of defendant’s indebtedness to him, or whether it was taken by the plaintiff conditionally, and upon the representation and warranty of the defendant that the makers were good, and that one of them was the owner of an unincumbered farm, was the question chiefly litigated on the trial. The evidence of the plaintiff tended to show that the note was taken conditionally, and upon the representations of the defendant, and not in reliance upon the note or guaranty, and that the plaintiff did not see or know what was written upon the back of the note by the defendant when it was delivered to him; while the evidence of the defendant tended to show that the note and guaranty were accepted in absolute payment of the plaintiff’s debt. On the trial the court charged the jury as follows: “When a-creditor accepts from a debtor a note of a third person to apply upon a precedent debt, the law presumes it not received in satisfaction of the debt, and the burden of proof is upon a debtor to show that it was taken in payment and satisfaction of the debt. This is the presumption the law raises in a case where a man lets another have a note of a third person to apply upon a debt which he then owes the person to whom he transferred the note.” To this portion of the charge the defendant duly excepted. I do not think this exception well taken. The law as stated by the court seems to be well established in this state. Noel v. Murray, 13 N. Y. 167; Smith v. Ryan, 66 N. Y. 354; Gibson v. Tobey, 46 N. Y. 637; Hall v. Stevens, 40 Hun, 581; Glenn v. Burrows, 37 Hun, 605; Catlin v. Munn, Id. 34. It is said, however, that this note was not transferred for a precedent debt, but transferred at the time of the sale and delivery of the property in question, and hence the charge was misleading. The evidence as set forth in the appeal-book does not justify that claim. The plaintiff testified that the defendant sought to have him take the note in question, and that he refused to do so, and requested the defendant to give his own note; to which he replied: “All right; we will fix that up.” He then testified that about a week after that, and after the delivery of the property in question, he met the defendant at the village of Peterboro, and he said to the plaintiff: “Come over to my house, and we will fix up that matter;” that he went, and it was then that the note in question was transferred. The defendant testified that he bought the most of the property on the 10th day of March, and the remainder on the 28th of the same month; that he took possession of that bought March 10th on the next day, March 11th; that he had taken the property when he saw the plaintiff in the forepart of April; that it was then arranged that the plaintiff should take the note in question; and that it was then transferred to him. Hence we see that the testimony of both the plaintiff and defendant was to the effect that the note in question was transferred to the plaintiff for a precedent debt. Moreover, the defendant, in his verified answer, in effect alleges that the note was taken in payment of a precedent debt. I am therefore of the opinion that the portion of the charge thus excepted to was proper, and that the court committed no error in its instructions to the jury upon that question.

The appellant also contends that the court erred in admitting paroi evidence as to the transfer of the note in question, and as to what occurred between the parties at the time. I do not think so. Where, on the sale of goods, the vendor takes the note of a third person, payable at a future date, at his own risk, and there is a fraudulent representation on the part of the vendee as to the note, the vendor may bring his action for the goods sold and delivered. Willson v. Foree, 6 Johns. 110; Pierce v. Drake, 15 Johns. 475; Galoupeau v. Ketchum, 3 E. D. Smith, 175. Where an obligation of a third person is accepted in payment of an indebtedness upon a mistaken belief as to his solvency, the person receiving the same is entitled to recover upon the original indebtedness. Duden v. Waitzfelder, 16 Hun, 339; Roberts v. Fisher, 43 N. Y. 159. This rule may apply even where the debtor gave the creditor, at the same time with it, substantial collateral security for its payment. Duden v. Waitzfelder, 2 Abb. N. C. 295. Where notes of a third person are received as payment for property previously purchased, upon the purchaser guarantying that the maker is responsible, and that, if he does not pay, he will, such guaranty is evidence that the notes were not received as absolute-payment, whether the guaranty is valid or void; and the creditor, when the note becomes due and is unpaid, may sue the original debt, and cancel the collateral security on the trial. Allen v. Bantel, 2 Thomp. & C. 342. As, substantially, the only question at issue between the parties was whether the Hardy note was transferred to and received by the plaintiff in absolute payment of his debt, or whether it was received conditionally, it seems to me that the evidence of what was said and done by the parties at the time of such transfer was admissible, and that the court committed no error in admitting the evidence, and submitting the question of the defendant’s liability for such debt to the jury. The rule prohibiting the reception of paroi evidence varying or modifying a written agreement does not apply when the original contract was verbal and entire, and a part only was reduced to writing; nor does it apply to a collateral undertaking. These facts are always open to inquiry, and may be proved by parol. Chapin v. Dobson, 78 N. Y. 74; Van Brunt v. Day, 81 N. Y. 251; Juilliard v. Chaffee, 92 N. Y. 529; Eighmie v. Taylor, 98 N. Y. 289; Dodge v. Zimmer, 110 N. Y. 43, 17 N. E. Rep. 399. The evidence introduced bore upon the question whether the note and written guaranty were accepted by the plaintiff in payment of his debt, or whether it was taken conditionally, and in reliance upon the alleged representations of the defendant as to the responsibility of the makers. The plaintiff clearly had the right to show that it was taken conditionally, and in reliance upon the defendant’s statement. Such proof was not, I think, violative of the rule prohibiting the admission of paroi evidence to vary or modify a written agreement between the parties. Hor do I think it was error for the court to charge: “If, however, you find that the plaintiff’s claim is correct, that he received this note for the purpose and- under the representations and warranty ahd promise which the plaintiff testifies to, then he is entitled to recover the amount due him upon the sale of the property to the defendant, provided you find that those representations and that warranty were not true; that the makers were not good and responsible.” The authorities previously cited seem to justify this portion of the charge.

It is also contended that the pleadings in this action were insufficient to justify the admission of evidence of the attendant circumstances, and what was said and done by the parties when the note in question was delivered to the plaintiff, and of the representations and warranty made by the defendant at that time. I think^ otherwise. The indebtedness of the defendant, which was the basis of the only cause of action submitted to the jury, arose upon the sale and delivery to the defendant of certain personal property. The defendant, by his answer, admitted the indebtedness, and that it was a precedent debt, but alleged payment by the sale and delivery to the plaintiff of the Hardy note. Presumptively, the transfer of this note did not discharge the plaintiff’s debt. It was in reply to the défendant’s defense of payment that the plaintiff was allowed to introduce this evidence. The purpose of the evidence was not to establish the plaintiff’s cause of action, but to avoid the defendant’s defense of payment, by showing that the note was not received in absolute payment of the plaintiff’s debt, but was only received by the plaintiff conditionally, and in reliance upon the representations and statements of the defendant as to the solvency of the makers. Thus it is seen that such evidence was received merely in reply to, or in avoidance of, the defense set up by the defendant. Hence no reply was necessary to enable the plaintiff to introduce such proof; nor was it necessary that the facts constituting such reply or avoidance should be set forth in the complaint. If the plaintiff was induced to accept this note in payment of his debt by the fraudulent representations of the defendant as to the solvency of the makers, or if it was transferred and accepted upon the mistaken belief that the makers were solvent, and that one of them was the owner of an unincumbered farm, and such belief was induced by the statements and representations of the defendant, it becomes quite manifest that the plaintiff was entitled to prove those facts in reply to, and to avoid, the defendant’s answer and proof that the note was taken in absolute payment of the defendant’s debt. 1 think the evidence objected to was proper, and clearly admissible. The other questions presented by the appellant have been examined, but disclose no error which requires or would justify a reversal of the judgment herein. These considerations lead me to the conclusion that the judgment in this action should be affirmed.  