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eBook details

• Title: Hosch v. Howe Et Al.
• Author : Supreme Court of Montana
• Release Date : January 22, 1932
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 56 KB

Description

Mortgages ? Foreclosure ? Promissory Notes ? Defense That Maturity of Note Extended by Contemporaneous Oral Agreement ? Parol Testimony ? Inadmissibility ? Waiver of Clause Accelerating Payment ? When Claim not Maintainable. Promissory Notes ? Parol Testimony Inadmissible to Extend Time of Payment. 1. Under sections 7520 and 10517, Revised Codes 1921, parol evidence of an oral agreement, made contemporaneously with a promissory note which contains an absolute promise to pay at a specified time, is not admissible to extend the time of payment or to provide for payment in any other way than that so specified, or to make it depend upon condition. - Page 406 Mortgage Foreclosure ? Promissory Note ? Inadmissibility of Parol Testimony to Extend Time of Payment as Fixed by Writing. 2. A mortgage on real property to secure a note payable in three years contained a clause accelerating maturity of the debt in case of failure to make prompt payment. The mortgagee proceeded to foreclose under that clause. Defendant set up as a defense that the debt had not matured and testified, over objection and with reservation of opinion by the court as to the admissibility of the testimony, that plaintiff, before execution of the note and mortgage, had orally agreed that if defendants at any time could not meet their obligations, he would "see them through for the three years." Held that, under the above sections, the testimony was inadmissible and that judgment for plaintiff was proper. Same ? Waiver of Clause Accelerating Maturity of Debt ? When Claim Without Merit. 3. To constitute a waiver it is essential that there be an existing right, benefit or advantage; hence where, in a mortgage foreclosure suit, defendants asserted that an acceleration clause in the instrument had been waived by the mortgagee, but the right of plaintiff to act on the clause was not existent at the time it was said to have been waived, the claim of waiver was without merit. Written Contracts ? Rule for Determining Whether Parol Testimony Varies Writing. 4. In determining whether or not the terms of a written instrument are varied by parol testimony, the most satisfactory test is found in the circumstance whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing; if it is mentioned, covered or dealt with in the writing, then presumably the writing was meant to represent all of the transactions on that element.

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