McFarland v. Sikes. three hundred dollars, which the defendant was unwilling to pay; that the defendant was without counsel and asked to be allowed till the following Tuesday to consider the matter, and offered to give his note for three hundred dollars to be held by the plaintiff till then, and if he did not then appear, to be held by the plaintiff as a settlement for the injury to the said Mary, but if he should appear, to be returned to him to be cancelled; that thereupon the plaintiff wrote the note in suit, which the defendant executed and delivered to the plaintiff to be held by him upon the conditions stated; and that the defendant at the same time declared that he should appear and demand a return of the note. The defendant also offered evidence that on the following Tuesday he appeared before the parties and demanded the return of the note, but that the plaintiff refused to surrender it. With reference to this evidence the defendant requested the court to charge the jury "that if the note was delivered to the plaintiff with the understanding between him and the defendant that it was to be delivered up to the latter on his demand on the Tuesday following, and the defendant demanded its return on that day, the plaintiff cannot recover, and the verdict must be for the defendant." The court did not so charge the jury, but substantially that if they should find all the facts claimed by the defendant to be proved they did not constitute a defense to the action. We think the court erred in refusing to charge as requested, and in charging as it did. The error was in applying to the case the familiar and well established rule that parol evidence is inadmissible to contradict or vary a written contract. A written contract must be in force as a binding obligation, to make it subject to this rule. Such a contract cannot become a binding obligation until it has been delivered. Its delivery may be absolute or conditional. If the latter, then it does not become a binding obligation until the condition upon which its delivery depends has been fulfilled. If the payee of a note has it in his possession, that fact would be prima facie evidence that it had been delivered; McFarland v. Sikes. but it would be only prima facie evidence. The fact could be shown to be otherwise and by parol evidence. Such parol evidence does not contradict the note or seek to vary its terms. It merely goes to the point of its nondelivery. The note in its terms is precisely what both the maker and the payee intended it to be. No one desires to vary its terms or to contradict them. In the case of Benton v. Martin, 52 N. York, 570, the court say: Instruments not under seal may be delivered to the one to whom upon their face they are made payable, or who by their terms is entitled to some interest or benefit under them, upon conditions the observance of which is essential to their validity. And the annexation of such conditions to the delivery is not an oral contradiction of the written obligation, though negotiable, as between the parties to it or others having notice. It needs a delivery to make the obligation operative at all, and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions with which the delivery is made." In the case of Schindler v. Muhlheiser, 45 Conn., 153, the head note is as follows:-"The defendant had given the plaintiff his note for certain real estate conveyed to him by an absolute deed by the plaintiff. Held, in a suit on the note, that parol evidence was admissible, on the part of the defendant, to show that the conveyance was not intended as a sale, but was made by the plaintiff for a certain purpose of his own and upon an understanding with the defendant that the land was afterwards to be conveyed back, and that the note was given at the time under an agreement that it was not to be paid." The defense in that case was really that the note had never been delivered as a note, binding upon the defendant. The delivery was merely formal, and was so understood by the parties. See also Adams v. Gray, 8 Conn., 11; Collins v. Tillou, 26 id., 368; Clarke v. Tappin, 32 id., 56; Post v. Gilbert, 44 id., 9; Hubbard v. Ensign, 46 id., 585. Damon v. Denny. We think the court erred in refusing to charge the jury as requested by the defendant. The view we have taken of this question renders it unnecessary to consider the other questions made in the case. There is error in the judgment appealed from, and it is reversed and a new trial ordered. In this opinion the other judges concurred. EDGAR T. DAMON vs. GEORGE W. DENNY. New Haven Co., June T., 1886. PARK, C. J., CARPENTER, Pardee, The law will not permit a plaintiff to have two suits pending against a defendant for the same cause of action. The existence of the first is ground for abating the second. And in determining whether the first suit is for the same cause of action with the second, parol evidence is admissible. And where the pending suit is one in which it is legally possible for a judgment to be rendered upon the cause of action alleged in the second and was brought for the purpose of obtaining such a judgment, the plaintiff is bound to exhaust the possibilities of that suit before subjecting the defendant to the cost of a second suit. [Argued June 2d-decided July 20th, 1886.] ACTION for breach of a warranty of the condition of certain apples sold, and for false representations with regard to them; brought to the City Court of the city of New Haven. Plea in abatement of the pendency of another suit for the same cause of action; plea sustained, and judgment for the defendant, (Pickett, J.) Appeal by the plaintiff. The case is fully stated in the opinion. H. Daily, for the appellant. A. D. Penney, for the appellee. 54 253 68 473 Damon v. Denny. PARDEE, J. On March 30th, 1855, the plaintiff instituted a suit against the defendant, alleging that he had expended for him three hundred dollars; had sold and delivered to him goods, wares and merchandise of the same value; had bargained and sold to him goods, wares and merchandise of the same value; and that he had never paid therefor; demanding two hundred dollars damages. On December 29th, 1885, that suit still pending, the plaintiff instituted this, alleging in effect in the first count that on March 27th, 1885, the defendant warranted to the plaintiff that certain apples were in good marketable condition; that relying upon the warranty the plaintiff purchased them and paid the defendant $367-50% therefor; that the apples were not marketable, and that the defendant knew that fact; that the plaintiff sold and delivered some of the apples to his customers as marketable: that he was compelled to take them back; that his reputation suffered thereby; and that he expended two hundred and twenty-five dollars in sorting, packing and carting them. In the second count, that the defendant falsely and fraudulently represented the apples to be marketable; that induced thereby the plaintiff bought and paid therefor $367-50%; that the defendant knew his warranty to be false and untrue; that the apples were. of no value; and that he suffered in reputation and expended money as set forth in the first count. The defendant pleaded in abatement the pendency of the first suit, and that it is for the same cause of action as that set forth in this. The plaintiff replied, in effect, that the first suit is not for any of the causes of action set forth in this, but for an entirely different cause. The defendant re-affirmed the truth of his plea. Upon the trial the defendant introduced the file in the first suit and then offered himself as a witness for the purpose of proving that he never had more than one transaction with the plaintiff, and that previous to that suit. To this evidence the plaintiff objected as irrelevant, immaterial and inadmissible; that it tended to contradict the file in the first suit; that the file must speak for itself; and that the issue must be tried solely Damon v. Denny. upon the comparison of files in the two suits. The court admitted the evidence, and the defendant testified in effect that the only transaction between them occurred on the 28th of March, 1885, and concerned a car load of apples. No other evidence was offered by either party. The plaintiff asked the court to find as a fact that it had not been proven that the suits were for the same cause; but the court found as a fact that the first suit was pending, that it was effective, and for the same cause as this, and adjudged that this abate. The plaintiff appeals because of the admission of evidence, and of the finding and ruling aforesaid. Under our Practice Act a plaintiff can attach the property of a defendant and summon him into court, upon a complaint which, while it must disclose a good cause of action, may do so in a very general way and be almost barren of details. It rests with the defendant to say whether the plaintiff shall have judgment without more, or whether he shall supply full details. The allegation in the first suit is in words as few and general as possible; it is in effect that the plaintiff has expended a sum of money which it is the legal duty of the defendant to re-pay; it is sufficient to sustain a judgment without more if the defendant refrains from requiring more. If the service of a complaint thus drawn fails to effect an adjustment and a trial must ensue, the act enables the defendant to require and the plaintiff to supply the omitted details, so that the complaint shall have the fullness, precision and truthfulness of ancient pleadings without their prolixity. If the act permits a plaintiff to ask for and receive and enforce a judgment upon so general a statement of his claim, if he should thereafter institute a second suit, and in his complaint state a cause of action with particularity of detail, there must remain to the defendant the right to prove, even by oral testimony, that this last cause of action. was the only one existing at the time of the first judgment and was the foundation upon which that rested. Supples v. Cannon, 44 Conn., 424, and cases cited in the reporter's note |