show that in a lease executed by an agent a mistake was made as to the principals named.28 In action on note to a trustee, which specifically names the beneficiary if there is no doubt or ambiguity as to his identity, parol evidence to show that another was intended as beneficiary is inadmissible.29 Parol evidence is admissible to show the authority of an agent acting for the principal in the creation of a written instrument.3o the parties to make it the obligation of the corporation. schild, 43 P. 979, 2 Kan. App. 516. Shaffer v. Hoen In an action on a corporation note by a holder who accepted the same as collateral with full knowledge of all the facts connected with its execution, extrinsic evidence is admissible to show that the directors who wrote their names on the back signed simply as officers of the corporation, and with the intention to bind it only. Kline v. Bank of Tescott, 31 P. 688, 50 Kan. 91, 34 Am. St. Rep. 107, 18 L. R. A. 533. In an action by the payee on a note made by defendants as president and secretary of a certain association, the collateral mortgage, and also parol evidence, are admissible to show that it was the understanding of all the parties that the note should be the obligation of the association. Benham v. Smith, 36 P. 997, 53 Kan. 495. In a suit on note signed by defendants as members of board of directors of a mining company, the admission of oral evidence to show their intention to sign note for the company and not individually, in view of Gen. St. 1915, § 6590, held erroneous. Lonnon v. Batchman, .173 P. 415, 103 Kan. 266. 28 Olds v. Conger, 32 P. 337, 1 Okl. 232. 29 Roberts v. Morgan, 56 Okl. 513, 156 P. 319. 30 In an action to recover of the lender the balance of a proposed loan to plaintiff on his note and mortgage, it was shown that plaintiff signed an application for a loan, which was forwarded to the lender by its agent, with a statement that plaintiff had agreed to the retention of a part of the loan until certain conditions had been complied with, and defendant alleged that there had been no performance of these conditions. Plaintiff denied having made any such agreement. Held, that the question was whether the lender's agent had authority as plaintiff's agent to make such statement, and parol evidence is admissible to show such authority, though the application was in writing. Kansas Loan & Trust Co. v. Love, 25 P. 191, 45 Kan. 127. Between nominal drawer of dishonored sight draft, the drawee for whom it was deposited for collection, and bank honoring depositor's checks in anticipation of collection, parol evidence was competent, in bank's action against depositors, to show relationship of parties. Lyon County State Bank v. Schaffer, 102 Kan. 868, 171 P. 1159. (942) § 1033. Consideration Where it appears from a writing that the statement of consideration therein is contractual, and not merely a matter of recital, the consideration is not open to contradiction by parol evidence.31 In an action on a note, parol evidence is admissible to show want or failure of consideration.32 Likewise, evidence that a note 31 Milich v. Armour Packing Co., 56 P. 1, 60 Kan. 229. A note, stating that it is for credit granted to a third person on threshing machinery, cannot be contradicted by parol evidence as to the consideration, in the absence of fraud or mistake. McNinch v. Northwest Thresher Co., 100 P. 524, 23 Okl. 386, 138 Am. St. Rep. 803. Under Wilson's Rev. & Ann. St. 1903, § 781, declaring that the execution of a contract in writing, whether required to be written or not, supersedes all oral negotiations, it cannot be shown that a note, reciting that it was in consideration of the benefits accruing from the construction of a railroad through a city, was upon the additional condition that the depot at such city should be located at a given point. Southard v. Arkansas Valley & W. Ry. Co., 103 P. 750, 24 Okl. 408. A release of a right to sue for damages, made without fraud, unambiguous, reasonable, and plain, but containing no agreement for future employment, cannot be supplemented by parol proof of such an agreement, though it be asserted that such an agreement was the inducement for the release. Atchison, T. & S. F. Ry. Co. v. Vanordstrand, 73 P. 113, 67 Kan. 386; Milich v. Armour Packing Co., 56 P. 1, 60 Kan. 229. That the deed recited a consideration did not render evidence of the real consideration incompetent. Perry v. Jones, 48 Okl. 362, 150 P. 168. Parol evidence as to true consideration for deed, the situation of the parties, and the circumstances under which instruments to be considered together with the deed were executed, held admissible. Roseman v. Nienaber, 100 Kan. 174, 166 P. 491. Parol agreement of grantees to support grantor is inadmissible to vary deed reciting consideration of $1,000. Wilson v. Highley, 157 P. 411, 98 Kan. 154. Where the defendant contracted in writing to convey land to the plaintiff for cash, plaintiff could not recover for breach of the contract by proof of an oral agreement to accept part cash, and a mortgage for the balance. Baker v. Haswell & Taylor, 128 P. 1086, 36 Okl. 429. 32 Aultman Threshing & Engine Co. v. Knoll, 71 Kan. 109, 79 P. 1074. Between the original parties to a note the consideration may always be inquired into. Deming Inv. Co. v. Wallace, 85 P. 139, 73 Kan. 291, Under the statute a note and the contracts under which it was received are not conclusive as to consideration and the purpose for which the instruments were given. Bank of Commerce v. Webster (Okl.) 172 P. 943; Rev. Laws 1910, §§ 4066, 4078. Parol evidence to show partial failure of consideration of a note is admissible to show what took place at the time the note was made. Jesse French Piano & Organ Co. v. Bodovitz (Okl.) 174 P. 765. In action on note, evidence to support partial want of consideration in was given for accommodation without consideration may be shown without violating the rule that oral evidence is inadmissible to vary or contradict the terms of a written contract.33 The rule that parol evidence cannot be received to vary the terms of a written contract does not apply to a check given in payment for property and reciting the consideration for which it was given, unless the parties intended that the check should contain the final contract between them as to the sale of the property.31 Where the officers of a corporation, under an agreement to divide the assets, execute deeds of corporate property to themselves as individuals, evidence of the consideration therefor, even though full and complete, and without fraud on the corporation, will not be admissible in an action to quiet title founded on such deeds.35 § 1034. Delivery The admission of oral evidence is proper to explain possession and prove that delivery of a written contract was conditional on the happening of some other event, acts, words, and circumstances. relevant to the delivery of a deed may be shown by parol.37 § 1035. Mistake 36 Where mutual mistake in a written contract is alleged, and reformation thereof is asked, oral evidence may be introduced to prove mistake and contract as it should have been.38 that note was greater than balance for which it was given does not contravene rule that terms of unambiguous instrument cannot be varied by parol. Holland Banking Co. v. Dicks (Okl.) 170 P. 253. 33 First Nat. Bank of Garden City v. Stroup, 104 Kan. 11, 177 P. 836. On foreclosure between immediate parties to a note and mortgage, parol evidence is admissible under Gen. St. 1915, § 6543, to show a failure of consideration, or that they were given merely as an accommodation to the payee. Rice v. Rice, 165 P. 799, 101 Kan. 20. 34 Griffith v. Marsh, 118 P. 879, 85 Kan. 693. 38 Minneapolis Steel & Machinery Co. v. Schalansky, 165 P. 289, 100 Kan. 562; Proctor v. Fife, 155 P. 931, 97 Kan. 431. In a purchaser's action for a deficiency in the amount of land conveyed, evidence of the oral negotiations between the parties was admissible to show mutual mistake as to the quantity of land. Maffet v. Schaar, 131 J'. 589, 89 Kan. 403. A. notified B. that a round sum was due on an account which had not been mutually examined, which was, by mistake, much smaller than it should have Thus parol evidence is admissible to show that a signature to a bond was misplaced by mistake.39 §1036. Fraud-Duress Where an instrument is attacked for fraud, all the circumstances leading up to its execution, as well as the parties' motives and intentions, may be shown by parol.40 been, and received B.'s note therefor, giving a receipt in full. Held in an action on the original account, to which B. pleaded an account stated, that A. might show by reply containing a general denial that there had been no settlement, and that the receipt was given under a mistake. Clark v. Marbourg, 6 P. 548, 33 Kan. 471. 39 Craig v. Spencer, 56 Okl. 259, 156 P. 172. 40 American Bankers' Ins. Co. v. Hopkins (Okl.) 169 P. 489; McLean v. Southwestern Casualty Ins. Co. of Oklahoma, 61 Okl. 79, 159 P. 660; Shuler v. Hall, 141 P. 280. 42 Okl. 325; Colonial Jewelry Co. v. Jones, 127 P. 405, 36 Okl. 788; Hart v. Haynes, 150 P. 530, 96 Kan. 262; Outcault Advertising Co. v. Smalley, 101 Kan. 645, 168 P. 677; Nickle v. Reeder (Okl.) 166 P. 895. A party cannot hide behind the contract procured in general scheme of his misconduct by asserting that all misrepresentations, whether false or otherwise made, previous to a written contract merged therein. Hooker v. Wilson (Okl.) 169 P. 1097. In the absence of misrepresentation or fraud, a party is bound by a written contract, though he was ignorant of its contents; but, where the signature was induced by misrepresentations as to its contents and he was ignorant thereof, he may introduce parol evidence of contemporaneous acts and conversations to show the true nature of the agreement. T. & H. Smith & Co. v. Thesmann, 93 P. 977, 20 Okl. 133, 15 Ann. Cas. 1161. In an action to avoid a written contract of insurance and to recover money paid thereon, on the ground that the party seeking to avoid and recover the payment had no opportunity to read the contract and was induced to execute the same by false and fraudulent representations, the rule that parol evidence will not be received of conversations between the contracting parties prior to the signing of the contract for the purpose of disputing, altering, or changing the terms of the contract does not obtain. State Life Ins. Co. v. Johnson, 85 P. 597, 73 Kan. 567. Where a defense was that defendant did not have fair opportunity to read the contract he signed, oral testimony that plaintiff assured defendant he might countermand order was properly admitted, where jury were instructed that contract was binding unless defendant did not have a fair opportunity to read it. Griesa v. Thomas, 161 P. 670, 99 Kan. 335. In a purchaser's action for a deficiency in the amount of land conveyed, evidence of the oral negotiations between the parties was admissible to show misrepresentations by the vendor as to the quantity of land. Maffet v. Schaar, 131 P. 589, 89 Kan. 403. A bill of sale absolute on its face may be shown, by creditors attacking it as fraudulent, to be other than it purports to be. McCluskey v. Cubbison, 57 P. 496, 8 Kan. App. 857. Where a parol contract for the purchase of goods was made between the (945) HON.PL.& PRAC.-CO 41 Parol evidence is admissible to show that the consideration of a contract was illegal or that the contract was made in furtherance of objects forbidden by statute, common law, or general policy of the law; that the execution of a note was procured through fraud; 42 or to show that a purported deed or contract is not in fact that made by the parties-the object being to show that by mistake or fraud a different deed or contract was made than the one inquired about.43 Though the buyer cannot contradict the writing proposing the sale, he may show fraudulent representations which induced its execution.44 The genuine signature and acknowledgment to an instrument indicates such a verity that it cannot be resisted or denied by doubtful and unsatisfactory statements and circumstances.* § 1037. Separate or subsequent oral contract 45 Parol evidence is inadmissible to contradict or vary the terms of an unambiguous written instrument, by showing an oral agreement relating thereto which was made prior to. or contemporaneous with, the written instrument.40 parties, but at the same time an instrument in writing purporting to be the contract, but which, as to prices, was never intended by the parties to be the contract, was signed by the purchaser, and such writing was made to differ, as to prices, from the real contract, because of an illegal combination previously entered into on the part of the seller with other dealers in the same kind of goods to enhance prices, the writing cannot be enforced as to the prices therein mentioned, by the seller, against the other party, and as against the real contract of the parties, although such real contract exists only in parol. St. Louis Wire Mill Co. v. Consolidated Barb-Wire Co., 27 P. 118, 46 Kan. 773. 41 Howard v. Farrar, 114 P. 695, 28 Okl. 490; Friend v. Miller, 34 P. 397, 52 Kan. 139, 39 Am. St. Rep. 340. 42 White v. Smith, 98 P. 766, 79 Kan. 96; Deming Inv. Co. v. Wallace, 85 P. 139, 73 Kan. 291. 43 American Trust Co. v. Chitty, 129 P. 51, 36 Okl. 479. 44 Fisher Mach. Works Co. v. Singletary, 104 Kan. 460, 179 P. 328. Where a life insurance policy is contested for fraud, parol testimony as to statements inducing the contract is not inadmissible as tending to vary terms of written application and medical examinations signed by insured. American Bankers' Ins. Co. v. Hopkins (Okl.) 169 P. 489. 45 Evidence that a wife "did not want to sign a mortgage on her homestead," that "she was forced to sign the mortgage," etc., is incompetent. Gabbey v. Forgeus, 15 P. 866, 38 Kan. 62. 46 First Nat. Bank of Blanchard v. Richburg, 75 Okl. 1, 181 P. 145; Neverman v. Bank of Cass County, Plattsmouth, Neb., 78 P. 382, 14 Okl. 417; |