
    Cummings v. Kent.
    
      Bill of exchange-— Contract of drawer — Presentation—Evidence of parol agreement.
    
    1. By the act of drawing and issuing a bill of exchange, the drawer contracts that it will be accepted and paid according to its terms, and that if it is not he will pay it.
    2. The liability of the drawer of a bill of exchange is fixed by the due presentation, demand, and notice of dishonor.
    3. Evidence of a parol agreement, prior to or contemporaneous with the drawing and delivery of a bill of exchange, that the drawer is not to b-liable as such, is inadmissible.
    4. Cummings was indebted to Kent. Chamberlain was indebted to Cummings in the same amount and more. Cummings drew bills of exchange upon Chamberlain in favor of Kent for the amount of his indebtedness to the latter, which were accepted hut not paid. There were due presentation, demand, and notice of dishonor. In an action by Kent upon the bills, Cummings answered that Kent agreed to take the acceptances in payment of his claim against Cummings, and that the latter drew the bills only for the purpose of assigning to Kent his claim against Chamberlain. Upon the trial Cummings offered to prove that prior to, and at the time of drawing the bills, there was a parol agreement that he was not to be liable thereon as drawer. Held: The evidence was properly excluded.
    Error to the District Court of Hamilton, county.
    . Bela C. Kent, the plaintiff in the original action, declared upon two bills of exchange of the tenor following:
    
      “ $1,565. New Albany, Ind., November 15, 1872.
    Ninety days after date of this, only of exchange, pay to the order of B. C. Kent, fifteen hundred and sixty-five dollars, without relief from valuation or appraisement laws, value received, and charge to account of
    E. Cummings.
    To Messrs. Chamberlain, Mathers & Co., New Albany, Ind.
    
    Accepted, payable at 1st Nat. Bank, New Albany, Ind.
    Chamberlain, Mathers & Co.”
    There were due presentation, demand, notice and protest.
    The drawer and acceptors were made defendants.
    E. Cummings, the drawer, and plaintiff in error, interposed the following as a defense:
    “E. Cummings, defendant, now comes and for a defense says that he signed the two bills of November 15, 1872, in the petition set out, but under the following circumstances, to wit: that, being indebted to plaintiff on that date in the sum of $3,014.65 for merchandise, plaintiff' thereupon agreed to take the acceptances of Chamberlain, Mathers & Co., co-defendants herein, in payment of such indebtedness, and to release defendant from all liability for the same. Said defendants, Chamberlain, Mathers & Co., were at the time indebted to this defendant in said amount and more, and the defendant, in pursuance of said agreement, drew on Chamberlain, Mathers & Co., in favor of plaintiff, solely for the purpose of assigning and transferring so much of his claim against said Chamberlain, Mathers & Co. to plaintiff; and the transfer was put into the shape of bills or orders on the suggestion of the book-keeper of plaintiff solely to enable Chamberlain, Mathers & Co. to have a voucher when they should pay said bills against this defendant on account.”
    On the trial Cummings offered to show by oral testimony:.
    “That on or prior to November 15, 1872, an arrangement was made between the plaintiff, defendant, and Chamberlain, Mathers & Co., that defendant, Cummings, should assign to plaintiff' $3,014.95 of his claim against Chamberlain, Mathers & Co., and that plaintiff' would take that claim in settlement of so much of defendant’s indebtedness to him, and release defendant from all liability for that indebtednes, and thereupon Kent did agree to release Cummings, and accepted Chamberlain, Mathers & Co., who thereupon agreed to pay said sum to the plaintiff.
    “ That, in pursuance of that agreement, the bills of exchange now sued on, were drawn up by the book-keeper of the plaintiff and signed by the defendant, but that the agreement between the parties was, that said papers should be used solely for the purpose of assigning defendant’s claim to the plaintiff’, and for the purpose of enabling Chamberlain, Mathers & Co. to have a voucher when they should pay these sums, against the defendant on account, but that the defendant was not to be liable on said bills of exchange as drawer.”
    The plaintiff below objected to this testimony. The objection ivas sustained and the testimony excluded. The only question before this court for consideration arises upon this action of the trial court. A judgment for the plaintiff' was affirmed by the district court on error. To reverse this judgment the present proceeding is prosecuted.
    
      John W. Herron, for plaintiff in error.
    
      Jordan $ Jordans, for defendant in error.
   Owen, C. J.

If the trial court properly excluded the evidence offered by the defendant below to prove that it was agreed, at the time the bills of exchange in suit were drawn, that he was uot to be liable thereon as drawer, the judgment below should be affirmed.

The real issue tendered by the answer was that Kent took the bills of exchange in payment of the debt of $3,014.95 which was due from the defendant, Cummings, to him, and agreed to release the former from all liability for the same. A careful inspection of the answer fails to disclose any averment that Kent agreed to release Cummings from his liability as drawer of the bills, or that there was any agreement that the only purpose in drawing the bills was to effect an assignment of the debt. If we assume the facts alleged in the answer to be proved as fully as averred, they would still fall short of establishing a defense to the action on the bills of exchange. They may have been taken in payment of the account, and Cummings thereby released from all liability thereon ; but the action was not upon the account, but upon the bills given for its payment. The evidence offered was properly excluded, as being irrelevant to the issues joined.

We do not find it necessary, however, to rest our determination of the case solely upon this ground. Assuming for the purposes of the ease, that the issues were broad enough to invite an inquiry into the facts which were sought to be proved by the evidence offered, was it competent to establish such facts by oral testimony?

The liability assumed by the drawing of a bill of exchange is clearly recognized by the law. The mere act of drawing a bill imports the most certain and precise contract, for presumed adequate consideration, that the bill shall be accepted and paid, and that if it is not, the drawer will pay it. Wood v. Surrells, 89 Ill. 107; Chitty on Bills, 147. It is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsing of a bill or note, can not be permitted to vary, qualify, or contradict, to add to or subtract from, the absolute terms of the contract. Parson’s Notes and Bills, 501.

The evidence which the court excluded in the case at bar was offered for the purpose of proving that at the time of the drawing and delivery of the bills in suit, it was agreed between the payee and drawer that the latter should not be liable as such drawer. If this was not an attempt to contradict the plain terms of the contract as the law interprets it, it is not easy to conceive of a case which would present such a question.

Morris v. Faurot, 21 Ohio St. 155, is cited to support, the view contended for by Cummings.

This was a suit by the indorsee against the indorser of a promissory note. The defense was that the indorsement was not made in the regular course of business, but that the plaintiffhad agreed with the makers to take up the note, and that “ the indorsement was made with the express understanding and agreement that this indorsement was to be used by the plaintiff only as evidence to Cochran & McElroy that he had paid off their indebtedness on the note to the defendants, and that it was made for no other purpose whatever.”

McIlvaine, J., says:

“ That parol testimony is inadmissible to contradict or vary the terms of written instruments, and that the contract of an indorser of a promissory note, whether the indorsement be in blank or otherwise, is within the meaning of that rule, as general propositions of law are true, may be admitted for the purposes of this case. But the question in the case, as we understand it, was not as to the terms of the contract, or the nature or extent of the indorser’s liability, but, whether there was any contract at all, out of which any liability could arise.”

It will be seen that this case expressly recognizes the rule which the trial court, in the case at bar, applied in excluding the evidence offered “ as to the terms of the contract, or the nature or extent of the liability” of the drawer.

Dye v. Scott, 35 Ohio St. 194, is relied upon as decisive of the case at bar, in that it establishes the admissibility of the evidence which the trial court excluded. The proposition declared by the court in that ease is : “ Oral testimony is admissible to prove that the iudorser, as between himself and the indorsee, at the time of indorsing a note in blank, waived demand and notice.” We are not called upon, nor have we any disposition, to question the entire soundness of this proposition; and the language of Gilmore, J., which is relied upon by the plaintiff in error, must be read and construed in the light of the question before the court and hot as declaratory of a rule which was not at all necessary to a solution of that question. The rule established by that case is supported by authorities which rigidly adhere to the principle which guided the trial court. 1 Parsons’ Notes and Bills, 584; Daniel’s Neg. Instruments, § 1093; Edwards’ Notes and Bills, § 861; Boyd v. Cleveland, 4 Pick. 525; Lane v. Steward, 20 Me. 98; Fuller v. McDonald, 8 Greenl. 213.

Wood v. Surrells, 89 Ill. 107, is an instructive case, presenting striking analogies to the case at bar. One of several judgment debtors gave a bill of exchange on a third person, wdiose acceptance was procured in satisfaction of the judgment. It was held that evidence of a parol agreement at the time of the drawing of the bill, to release the drawer from all liability on the draft, was inadmissible. Here the judgment was paid by the drawing and acceptance of the bill; but evidence of a contemporaneous parol agree' ment that the drawer was not to be liable as .such, was excluded.

It was further held in this case, that the liability of a drawer of an inland bill of exchange is fixed by presenting the draft on the day of its maturity, and notice of its dishonor. It was also held that: “ The rule is familiar, that an agreement can not exist partly in writing and partly in parol, or, that verbal terms or conditions can £not control the rights or liabilities of parties to commercial paper.”

While there is not entire uniformity in the authorities upon the question, their decided weight will be found to support the principle that evidence is not admissible to prove a contemporaneous parol agreement that the liability of the drawer of a bill of exchange is not to be enforced. 1 Daniels’ Neg. In., § 80; Martin v. Cole, 104 U. S. 30; Bigelow v. Colton, 13 Gray, 309; Davis, Receiver, v. Randall, 115 Mass. 547; Bartlett v. Lee, 33 Ga. 491; Day v. Thompson, 65 Ala. 269: Barnard v. Gaslin, 23 Minn. 192; Crocker v. Getchell, 23 Me. 392; Fuller v. McDonald, 8 Greenl. 213; Tankersley v. Graham, 8 Ala. 247; Stubbs v. Goodall, 4 Ga. 106; Wilson v. Black, 6 Blackf. 509; Holton v. McCormick, 45 Ind. 411; Stack v. Beach, 74 Ind. 571; Woodward v. Foster, 18 Gratt. 200; Barry v. Morse, 3 N. H. 132; Heaverin v. Donnell, 7 Sm. & M. 244; Heath v. Van Cott, 9 Wis. 516. This is also the rule in England. Hoare v. Graham, 3 Campb. 57; Abrey v. Crux, 5 Com. P. (L. R.), 37; Bell v. Lord Ingestre, 12 Q. B. 317; see also, Forsythe v. Kimball, 91 U. S. 291; Specht v. Howard, 16 Wall. 564.

Judgment affirmed.  