Northern Trust Co. v. Hiltgen

There was no defensive allegation in the answer in this action, and there was no offer of evidence in support of the allega*363tions which would take this case out of an application of the familiar rule that parol evidence is inadmissible to alter,' contradict, or vary the terms of a written contract. The oral agreement set forth in the answer, and which the offered and rejected evidence was intended to establish, pertained to the very matter covered by the note in suit, and was inconsistent with its express terms. The proposed evidence was properly excluded. Harrison v. Morrison, 39 Minn. 319, 40 N. W. 66. See, also, Rugland v. Thompson, 48 Minn. 539, 51 N. W. 604.

Nor was the alleged counterclaim available to defendant, for two-excellent reasons, at least: First. From the evidence offered by defendant it conclusively appeared that she did not acquire title to the demand against the bank until several days after this action was commenced. A counterclaim, to be available under G-. S. 1894, § 5237, subd. 2, must exist in favor of a defendant and against a plaintiff at the time of the commencement of the action. Van Valen v. Lapham, 13 How. Prac. 240; Parsons v. Sutton, 66 N. Y. 92; Rickard v. Kohl, 22 Wis. 482. Second. Defendant acquired title to the proposed counterclaim more than one year after the payee bank had assigned in insolvency to this plaintiff. The very purposes of an assignment would be defeated if a demand against the insolvent, obtained after the assignment, could be used as a counterclaim in an action brought by the assignee to realize upon the assignor’s assets. And it would also encourage the perpetration of great frauds by the latter’s debtors. The demand against the bank could not be interposed as a counterclaim in an action upon defendant’s note. See St. Anthony Lumber Co. v. Bardwell-Robinson Co., 60 Minn. 199, 62 N. W. 274; Northern Trust Co. v. Healy, 61 Minn. 230, 63 N. W. 625.

Order affirmed.