11 S.W. 759 (Mo. 1889), State ex rel. Yeoman v. Hoshaw

• Judge: Black, J. Sherwood, J., not sitting.
• Parties: The State ex rel. Yeoman, Appellant, v. Hoshaw
• Date: 10 June 1889
• Docket Number: .
• Court: Missouri Supreme Court
• Citation: 11 S.W. 759,98 Mo. 358

Page 759

11 S.W. 759 (Mo. 1889)

98 Mo. 358

The State ex rel. Yeoman, Appellant,

v.

Hoshaw

Supreme Court of Missouri

June 10, 1889

Appeal from Lawrence Circuit Court. -- Hon. M. G. McGregor, Judge.

Reversed and remanded.

Henry Brumback for appellant.

The oral testimony, admitted by the court, was calculated to do nothing less than to vary, contradict, control, affect, diminish, emasculate and render barren the written contract of the parties. That oral testimony cannot be heard to accomplish this, is a principle elementary and constantly reiterated. 2 Kent, 556; 1 Greenl., sec. 275; County v. Wood, 84 Mo. 489; Wislizenus v. O'Fallon, 91 Mo. 184; Pearson v. Carson, 69 Mo. 550; George v. Dean, 17 Mo.App. 332; Miller v. Dunlap, 22 Mo.App. 97; Turner v. Railroad, 20 Mo.App. 632; Howard v. Thomas, 12 Oh. St. 201; Cummings v. Kent, 44 Oh. St. 92; Forsythe v. Kimball, 91 U.S. 291.

Phelps & Brown, with R. H. Landrum, for respondent

Parol testimony is competent to rebut the presumption that a judgment against an endorser passes by an assignment of the judgment against the principal, but nothing is said in the assignment about the judgment against the endorser. Brandt on Suretyship, sec. 34; Bank v. Fordyce, 9 Pa. St. 235; Harris v. Brooks, 21 Pick. 195.

Black, J. Sherwood, J., not sitting.

OPINION

[98 Mo. 359] Black, J.

For some of the details of this case, reference is made to the opinion filed when it was here before. 86 Mo. 193. In 1854, Wm. H. H. Younger was appointed guardian and curator of John, Ephraim and Margaret Woodrow. Such proceedings were had on the final settlement of the guardian's accounts that Margaret and her husband, John Forshee, obtained judgment against Younger in December, 1871, for $ 2,406.80. Judgments were also obtained by the other wards. Forshee and his wife assigned their judgment to Yeoman in April, 1879; and this is a suit by him on the guardian's bond. The present defendant, J. N. Hoshaw, is an heir of Oswald Hoshaw who was one of the sureties of Younger. The defendant is sued because of estate descended to him.

The answer, among other things, avers that the judgment was assigned by the Forshees to Yeoman with the agreement and upon the understanding that he would not require the Hoshaw heirs to pay the same or any part thereof. To prove this averment, the court admitted evidence of the declarations and conversations between the parties at the time

Page 760

the written assignment was made; and this ruling presents the only question before us at this time. The assignment was made under these circumstances: In 1878, Ephraim Woodrow, and Forshee and his wife, obtained a decree divesting [98 Mo. 360] Younger of the title to lands in Lawrence, Jasper and Newton counties, and investing the same in them, with an order for writs of...