While parol evidence will be received to explain that a note was executed by the maker for the accommodation of another, or to be held as collateral, it is inadmissible to defeat recovery thereon, where the payee, on the strength of the execution and delivery of the note, and at the request of the maker, extended credit to a third party.84

When it is contended that the note sued on has been altered, fraudulently filled in, or is otherwise a misrepresentation of the contract, parol evidence is admissible.85

Where notes are transferred from one bank to another by indorsement, evidence to show the contracts between the banks, as to the purpose of the transfer, is competent.86

In an action on a note negotiated by the payee, parol evidence. is admissible to show that the words "without recourse," written under name of payee, were intended to apply to him.

§ 1023. Deeds and mortgages

87

The execution of a deed, the deposit of same, and other acts concerning it, independent of its contents, may be shown by parol.88

an action on the note by C.'s assignee, parol proof contradicting the indorsement and changing it to an unconditional transfer, was inadmissible. Cross v. Hollister, 28 P. 693, 47 Kan. 652.

84 Willoughby v. Ball, 90 P. 1017, 18 Okl. 535.

85 Where a soliciting agent for an insurance company agreed with applicant that he should have until April 23d to cancel the policy if he wished and have premium note returned, but fraudulently inserted in the application April 1st, the insured could show such facts in discharge of the note. Phipps v. Union Mut. Ins. Co., 50 Okl. 135, 150 P. 1083.

Where purchaser of land agreed to transfer notes as part of price, and after transfer he contended that waiver of protest and notice of protest and guaranty of payment were written on notes after he signed them, evidence to show when the words were written was competent. Forbes v. Madden, 158 P. 850, 98 Kan. 559.

In the trial of an action for the reformation of a note, where one of the principal questions is to determine what were the actual terms of the contract as agreed upon by the parties, it is not error for the court to permit one of the parties, in giving his evidence, to tell all that was said at the time the contract was made between the parties, and also to state incidentally what was said by a third party, who assisted in making the contract, although his interest therein, if any, does not appear. Wendt v. Diemer, 58 P. 1003, 9 Kan. App. 481.

86 Northrup Nat. Bank v. Yates Center Nat. Bank, 159 P. 403, 98 Kan. 563.

87 Leahmer v. McCollough, 162 P. 297, 99 Kan. 451.

88 Morris v. Blazer, 152 P. 767, 96 Kan, 466.

Parol evidence is admissible when the date given in a deed or mortgage is not the true date.89

A bill of sale absolute on its face may, in an action by the vendee for possession of the property, be shown by parol to have been given as security.90

The same is true of a deed absolute on its face, when it is in

In determining whether a transaction was a sale or a mortgage, it is proper to inquire whether the consideration was adequate to induce a sale.92

Where merchandise is traded for land and the difference paid in notes secured by chattel mortgages, and where the mortgagor sells the mortgaged property at public sale, and the mortgagee acting as clerk of the sale retains the proceeds, in an action for conversion of such proceeds, evidence of the entire transaction is admissible.93

Where it is not clear from recitals whether a chattel mortgage

89 Parol testimony is admissible to vary the date as expressed in a deed to land, when such date is in issue. Randolph v. Mullen (Okl.) 175 P. 512.

When a note and the mortgage securing the same do not set forth the true date of their execution, the actual time 'at which they were executed may be shown in an action to recover on the note and to foreclose the mortgage. McFall v. Murray, 45 P. 1100, 4 Kan. App. 554.

90 Butts v. Privett, 14 P. 247, 36 Kan. 711.

Where plaintiff contends that he made an absolute sale of the property, and defendant claims that he accepted the bill of sale as a chattel mortgage, it is competent for plaintiff to show that defendant has sold the property, or a part thereof, as his own. Eby v. Winters, 33 P. 471, 51 Kan. 777.

91 Balduff v. Griswold, 60 P. 223, 9 Okl. 438; Yingling v. Redwine, 69 P. 810, 12 Okl. 64; Wagg v. Herbert, 92 P. 250, 19 Okl. 525, judgment affirmed 30 S. Ct. 218, 215 U. S. 546, 54 L. Ed. 321.

Parol evidence is admissible to show that an instrument reciting the receipt of the transfer of certain lots for a certain price, payable in lumber, and containing an agreement to reconvey to the grantors on payment of their bill to the grantee, and that the parties should sell the lots within 90 days, was intended for a mortgage, and not an absolute sale of the lots, rendering the grantee liable for the price. Stith v. Peckham, 46 P. 664, 4 Okl. 254.

Parol evidence is admissible to show that a deed absolute on its face was intended by the parties as a mortgage, that it was given for the security of a debt, and that a bond given by the grantee for a reconveyance, if the debt secured was paid, was intended by the parties as a defeasance, and not an ordinary bond for title. Weiseham v. Hocker, 54 P. 464, 7 Okl. 250.

92 Wagg v. Herbert, 92 P. 250, 19 Okl. 525, judgment affirmed 30 S. Ct. 218, 215 U. S. 546, 54 L. Ed. 321.

93 Swain v. Archer, 54 Okl. 731, 154 P. 644,

was intended to cover only jointly owned property of the two mortgagors or their separate property, parol evidence is admissible to show the circumstances of its execution, its subject-matter, the relation of the parties, and its object to ascertain the intent of the parties."4

§ 1024. Tickets, bills of lading, and receipts

In an action by a purchaser of a ticket, showing the time of its expiration, and signed in ink by the purchaser, to recover for his expulsion from a train after the date of the expiration shown by the ticket, parol evidence of statements by the ticket agent contradic tory of the contract contained in the ticket is inadmissible.95

A recital in a bill of lading that a shipment covered thereby is made under a particular order for a car is evidence of the facts. stated in the recital, but it is not conclusive evidence thereof, and may be rebutted.90

A receipt is open to explanation and contradiction; 7 but a contract which is incorporated therein cannot be explained or contradicted, in the absence of fraud or mistake.98

A deposit slip issued by a bank is but prima facie evidence of its receipt of the amount of deposit on the date shown by the slip, and is open to explanation of the conditions surrounding the deposit and circumstances under which it was given.99

94 First Nat. Bank of Washington v. Haines, 76 Okl. 301, 185.P. 441.

95 Rolfs v. Atchison, T. & S. F. Ry. Co., 71 P. 526, 66 Kan. 272.

96 Farmers' Grain & Mercantile Co. v. Union Pac. R. Co., 103 Kan. 527, 175 P. 599.

97 Kuykendall v. Lambert (Okl.) 173 P. 657; Ellicott v. Barnes, 31 Kan. 170, 1 P. 767.

A receipt for money in full of all demands is always open to contradiction or explanation. The rule that parol evidence is inadmissible to contradict or vary writings does not apply to it. Clark v. Marbourg, 6 P. 548, 33 Kan. 471. Ordinarily, the mere negligence of a person in signing a receipt without reading the same will not conclude such person, nor prevent explanation or denial of what it contains, and especially so if it appears that such person was induced to sign the paper by the misrepresentation or fraud of the other party. Missouri Pac. Ry. Co. v. Lovelace, 45 P. 590, 57 Kan. 195.

98 Robertson v. Vandeventer, 51 Okl. 561, 152 P. 107. Parol evidence held admissible to show that a receipt given by a party who had contracted relative to the drilling of a well in Oklahoma and one in Kentucky related to the Oklahoma contract only. Id.

99 Citizens' Bank of Headrick v. Citizens' State Bank of Altus, 75 Okl. 225. 182 P. 657; American Nat. Bank of Stigler v. Funk (Okl.) 172 P. 1078, L. R.

§ 1025. Release

1

Parol evidence is not admissible to show that a general release, releasing the defendant of all claims that the plaintiff had against him, was not intended to release a particular debt; nor is it admissible to contradict or vary a written release of a portion of the property included in a chattel mortgage where the release is plain and unambiguous.2

1026. Court records

The records of a court import absolute verity, and where jurisdiction over the person is conceded, parol testimony is inadmissible in habeas corpus to prove that what the record shows was done by the court was not in fact done.3

In the absence of ambiguity, oral evidence of the character of the claim is inadmissible to supplement the record of an action wherein a judgment was obtained against a bankrupt pending bankruptcy proceedings.*

The records of the district court clerk, showing the issuance of an execution, cannot be impeached by evidence of a declaration by the deputy clerk that no execution had been issued."

A record in a case, showing that lands were duly appraised before being sold by the sheriff, cannot be impeached by parol evidence in a 'collateral proceeding."

Where a former judgment is pleaded in estoppel, parol evidence.

A. 1918F, 1137; American Home Life Ins. Co. v. Citizens' State Bank (Okl.) 168 P. 437, L. R. A. 1918B, 296.

In an action on a note, against one who had agreed to indorse it and had made a special deposit in the plaintiff bank to secure performance of his agreement, the defendant's testimony as to what was said when the deposit was made was not inadmissible as an attempt to vary the terms of the written contract. First State Bank of Indiahoma.v. Menasco, 55 Okl. 748, 155 P. 261.

1 Curro v. Altieri, 66 N. Y. S. 499, 32 Misc. Rep. 690.

2 Drumm-Flato Commission Co. v. Barnard, 72 P. 257, 66 Kan. 568. In re Macke, 1 P. 785, 31 Kan. 54.

The Supreme Court will not, on an application, for habeas corpus, permit the entry of a judgment of the district court, on its face regular, to be overthrown by parol evidence that such entry was ordered by one who had ceased to be a judge of that court, and who assumed to act outside of his district. In re Watson, Petitioner, 30 Kan. 753, 1 P. 775.

+ Chambers v. Kirk, 139 P. 986, 41 Okl. 696.

Sparks v. Martin, 150 P. 532, 96 Kan. 282, Ann. Cas. 19180, 324.
Pritchard v. Madren, 2 P. 691, 31 Kan. 38.

not contradicting the record, is admissible to show the facts upon which it was based.

Alteration of a record may be shown by parol.8

Where a party has introduced a judgment of a justice of the peace in evidence the opposite party may introduce the bill of particulars and the note on which the judgment was based to show that the justice was without jurisdiction."

The terms of an unambiguous city ordinance cannot be varied by parol evidence.10

§ 1028. Memoranda and incomplete contracts

Where an oral agreement is in part reduced to writing and the latter is not a final statement of the entire transaction, parol evidence, not inconsistent with such written contract, is admissible.11

7 Chambers v. Land Credit Trust Co., 139 P. 1178, 92 Kan. 30, rehearing denied 142 P. 248, 92 Kan. 1032.

Where the record fails to show the agreement on which the dismissal of a suit, which is claimed as res judicata, is based, extrinsic evidence may be resorted to. Turner v. Fleming, 130 P. 551, 37 Okl. 75, 45 L. R. A. (N. S.) 265, Ann. Cas. 1915B, 831.

A question as to what rights have been acquired by condemnation proceedings which include the trial of an appeal from the award by commissioners depends upon what was in fact adjudicated, and, though the record may not be contradicted, other evidence consistent with it, including parol evidence. may be received to show what was involved, considered, and established. Stone v Missouri Pac. Ry. Co., 90 P. 251, 75 Kan. 600.

Where a defendant relies upon a proceeding and judgment of the district court as res judicata, and not upon an arbitration, the court properly refused to allow one of the arbitrators to testify that the subject-matter was not considered by such arbitrators. Repstine v. Nettleton, 49 P. 617, 6 Kan. App. 919.

8 Sackett v. Rose, 55 Okl. 398, 154 P. 1177, L. R. A. 1916D, 820. 9 Miller v. Mills, 122 P. 671, 32 Okl. 388.

10 The terms of an unambiguous city ordinance granting a franchise to a railroad company to use a city street cannot be varied by evidence of a parol promise by the grantee to pay damages to an adjacent owner. Marshall v. Wichita & M. V. R. Co., 152 P. 634, 96 Kan. 470.

11 Jesse French Piano & Organ Co. v. Bodovitz (Okl.) 174 P. 765; 0. K. Transfer & Storage Co. v. Neill, 59 Okl. 291, 159 P. 272, L. R. A. 1917A, 58; Smith v. Bond, 56 Okl. 112, 155 P. 1116; Rawlings v. Ufer, 61 Okl. 299, 161 P. 183.

Parol evidence that the parties to an architect's contract to furnish plans for a school building understood that the building should cost not exceeding