The writ of error in this case brings for review a judgment in favor of the defendant in a suit which was instituted to enforce payment of six certain promissory notes.
The declaration was in six counts.
The difference in the several counts is not material. Each count stated a sufficient cause of action on one of the several promissory notes in which the makers agreed to pay costs and attorney's fees in case of default and suit to enforce payment.
The first plea denied the making, execution and delivery of the notes.
The second plea was as follows.
That the defendant, J.E. Taylor, on behalf of the defendants, hired the plaintiff and others to act as brokers to sell certain land; that the said brokers sold the land to Roth Bros. Inc., for the sum of $97,839.40, of which $23,481.00 was to be paid in cash, and the balance to be paid in deferred payments over a period of years; that the series of six (6) promissory notes described in the declaration were given by the defendants to the plaintiff as her part of the commission for the aforesaid sale and the said notes were delivered to the plaintiff upon the prior express condition and understanding between the plaintiff and the defendants that the said notes would be paid when and at the time the deferred payments were made by Roth Bros., Inc., and that the said notes would not be paid until Roth Bros., Inc., should pay the defendants the deferred balance of the purchase price of said land; that the plaintiff received said notes under the aforesaid understanding and agreement, and at the time of their receipt agreed to the conditions upon which the same were delivered as stated, and further agreed with the defendants that the notes should not become *Page 808 due until the said Roth Bros., Inc., should make the deferred payments; that the plaintiff further agreed that the said notes were never to be paid by the defendants unless Roth Bros., Inc., should pay the said deferred payments; that if the deal was never consummated by the said Roth Bros., Inc., and the defendants had to take back the land, the notes were not to be paid by the defendants and would be void and of no effect; that Roth Bros., Inc., never paid the deferred payments nor any part thereof, and that these defendants have never received any money from the said Roth Bros., Inc., other than the initial cash payment, and later were forced to take back the land from the said Roth Bros., Inc.
"WHEREFORE, These defendants say that the condition under which these notes were delivered to plaintiff were never performed, and that the consideration thereof has wholly failed."
The third plea was as follows:
"That these defendants hired H.W. Cockrell to act as their broker to sell certain land; that the said broker sold the land to Roth Bros., Inc., for the sum of $97,839.40, of which amount $25,481.00 was to be paid in cash, and the balance in deferred payments over a period of years; that these defendants did not know of plaintiff's connection with this deal until the cash payment was made, and the said H.W. Cockrell at that time requested that the balance of the brokers' commissions be paid in promissory notes made and executed to himself, the plaintiff, whose name was then Margaret M. Moore, and to one S.J. Tucker; that the series of six (6) promissory notes described in the declaration were given by these defendants to H.W. Cockrell, the duly authorized agent of the plaintiff, as plaintiff's part of the commission for the aforesaid sale, and the said notes *Page 809 were delivered to the said H.W. Cockrell upon the prior express condition and understanding that the said notes would be paid when and at the time the deferred payments were made by Roth Bros. Inc., and that said notes would not be paid until Roth Bros., Inc., should pay the defendants the deferred balance of the purchase price of said land; that the said H.W. Cockrell received said notes under the aforesaid understanding and agreement, and at the time of their receipt agreed to the conditions upon which the same were delivered as stated, and agreed with the defendants that the notes should not become due until the said Roth Bros., Inc., should make the deferred payments; that the said H.W. Cockrell further agreed that said notes were never to be paid by the defendants unless Roth Bros. Inc., should pay the said deferred payments; that if the deal was never consummated by the said Roth Bros., Inc., and the defendants had to take back the land, the notes were not to be paid by the defendants and would be void and of no effect; that Roth Bros., Inc., never paid the deferred payments, nor any part thereof, and that these defendants have never received any money from said Roth Bros. Inc., other than the initial cash payment, and later were forced to take back the land from the said Roth Bros., Inc., WHEREFORE these defendants say that the conditions under which these notes were delivered to plaintiff were never performed, and that the consideration thereof has wholly failed."
Demurrer and motions to strike were interposed as to the second and third pleas. The demurrers were overruled and the motions to strike were denied. The rulings on demurrers and motions to strike were assigned as error. Other errors were assigned but it is not necessary for us to discuss the questions raised by such other assignments because *Page 810 the case must be disposed of here on the assignments based on the rulings overruling the demurrers and denying the motions to strike. The demurrers were overruled and the sufficiency of the pleas sustained upon the theory that the pleas were sufficient to show a conditional delivery of the notes sued on. The allegations of the pleas are not sufficient to show conditional delivery of the notes. The pleas are only sufficient to show that there was an alleged contemporaneous agreement that the notes should not be required to be paid according to the true tenor and effect thereof, but should only be required to be paid in event that certain other parties not parties to this suit nor parties to the notes, should pay their obligations to the makers of the notes. By these pleas it was sought to contradict the unambiguous terms of written instruments, to-wit, the promissory notes sued on. There is a vast difference between the condition precedent to the requirement of payment, which is what was alleged to have existed in this case, and a conditional delivery. There was nothing in the allegations of the pleas interposed to show that the transaction was incomplete and revokable, or that there was not an authorized delivery of the notes so as to bring them within the purview of Section 4690 R.G.S., 6776 C.G.L.
It is true that in the case of Martineau v. Hansen, 47 Utah 549, 155 P. 432, a plea setting up a condition such as is relied on here was held good. But we are not inclined to follow that case. We think the case here is analogous to those cases where it has been held that the effect of the plea and the evidence in support of the plea was merely to establish the fact that there was a contemporaneous agreement that the notes should be paid out of a particular fund derived from a particular source and that parol evidence is not admissible to establish that fact. Gorrel v. Home Life *Page 811 Ins. Co., 63 Fed. 371, 11 C.C.A. 240; National Bank v. Foote,12 Utah 157, 42 P. 502; Underwood v. Simon, 12 Metc. (Mass.) 275; Clanin v. Easterly, etc., Co., 118 Ind. 372, 21 N.E. 35, 3 L.R.A. 863; Stewart v. Anderson, 59 Ind. 375; Central Savings Bank v. O'Connor, 132 Mich. 578, 94 N.W. 11, 102 Am. St. Rep. 433.
We think the question here under consideration is ruled in this jurisdiction by the opinion and judgment in the case of Anderson v. Ax, 104 Fla. 294, 139 So. 798, in which we held:
"Where a plea attempts to set up as a defense to the action an independent contemporaneous parol agreement between the maker and the payee to the effect that the note should not be binding and enforceable against the defendant, the maker, and exempting him under certain conditions, from any liability on the note, while under other conditions, he was to remain liable thereon for some indefinite and unfixed sum, such pleas amount to nothing more than an attempt to contradict and vary the terms of the valid written instrument by averring the existence of the collateral contemporaneous parol agreement, evidence of which would be entirely inadmissible on trial. Such pleas must fall on demurrer."
And also by the opinion and judgment in the case of Forbes v. Fort Lauderdale Mercantile Co., 83 Fla. 66, 90 So. 821, and cases there cited. Also by opinion and judgment in the case of Rivers v. Brown, 62 Fla. 258, 56 So. 553. In the latter case we held:
"To an action upon a promissory note the terms of which constitute a plain, unconditional promise to pay to the plaintiff on a stipulated date a given sum of money for value received, a plea is bad, upon demurrer, that seeks to contradict, alter and vary the terms of the note so as to *Page 812 make the time of payment uncertain and dependent upon the sale of cross-ties by the defendant."
And it was also said:
"The plaintiff in error contends that the note sued upon was not delivered to the plaintiff as present contract, the defendant reserving unto himself the right to refuse to pay the note until the cross ties should be sold, and the claim is made that the defendant is not seeking to vary or contradict the terms of a written contract, but is asking for his rights based upon the conditional delivery of the note. It is a well settled principle of the law of evidence that proof of a contemporaneous parol agreement is inadmissible to contradict or vary the terms of a valid written instrument. On its face the first plea lays the foundation for the introduction of parol testimony to contradict the terms of the note sued upon and set out in extenso in the declaration. The note, by its terms, fixed the time of its maturity and the time when the holder might lawfully resort thereto for the collection of the amount due. The terms of the note constitute a plain, unconditional promise on a stipulated date, to pay to the plaintiff a given sum of money for value received. The plea, if sustained, would contradict, alter and vary the terms of this written contract so as to make the time of payment uncertain and dependent upon the sale and disposition of the cross ties by the defendant."
In support of that enunciation the court cited:
"Joyner v. Turner, 19 Ark. 690; Johnson v. Cobb, 100 Ga. 139, 38 S.E. Rep. 72; Dorsey v. Armor, 10 Colo. App. 255, 50 Pac. Re. 726; Ellis v. Hamilton, 4 Sneed (Tenn.) 512; Bookke v. Gulf Ice Co., 24 Fla. 550, 5 South. Rep. 247; Solary v. Stultz, 22 Fla. 263; Perry v. Biglow, 128 Mass. 129; Hall v. First Nat. Bank,173 Mass. 76, 53 N.E. Rep. 154, 73 Am. St. Rep. 255; Wilson v. Wilson, 26 Oregon 251, *Page 813 38 Pac. Rep. 185; Bank v. Whitlow, 6 Ala. 135; Central Savings Bank v. O'Connor, 139 Mich. 82, 102 N.W. Rep. 280; Mallory v. Fitzgarland's estate, 69 Neb. 312, 95 N.W. Rep. 601; Davis v. Randall, 115 Mass. 547, 15 Am. Rep. 146."
I think demurrer to the pleas should have been sustained and, therefore, the judgment should be reversed and the cause remanded to the court below with directions that it be reinstated on the rolls and an order entered sustaining demurrer to pleas numbered 2 and 3 and that, thereupon, further proceedings be had.