Beauford v. Patteson

When this case was before this court upon a previous appeal, the evidence tending to explain the receipt or contract given at the time of making the notes in suit was given without any objection, and was treated as part and parcel of the case; but in the record now before *253us the admission of this evidence explanatory or changing the terms of the contract was objected to and should have been excluded, unless the contract itself is ambiguous.

We find no ambiguity whatever in the contract. The parties each contracted to do certain things in clear unambiguous terms, and the rights of the parties must necessarily be controlled by the language of this contract. It was error, therefore, to admit any evidence tending to vary its terms, and there was no question whatever for the jury to determine.

This court having already decided that according to the contract the plaintiff could not recover without the surrender of the note agreed to be surrendered, it is not necessary to discuss that proposition anew (Beauford v. Patteson, 10 Daly 338).

As to the suggestion about the loss of the note after May 12th, 1876, it is sufficient to say that there is no evidence whatever of the fact.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

J. F. Daly and Van Hoesen, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.