Columbian Nat. Life Ins. Co. v. Dubinsky

• Decision Date: 26 February 1942
• Docket Number: 37599
• Parties: The Columbian National Life Insurance Company, a Corporation, Plaintiff-Appellant, v. Jack Dubinsky, Ethel Dubinsky, Hyman Cohen and Ray Cohen, Defendants-Respondents
• Court: Missouri Supreme Court

160 S.W.2d 727

349 Mo. 299

The Columbian National Life Insurance Company, a Corporation, Plaintiff-Appellant, v. Jack Dubinsky, Ethel Dubinsky, Hyman Cohen and Ray Cohen, Defendants-Respondents

No. 37599

Supreme Court of Missouri

February 26, 1942

Rehearing Denied April 16, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene L Padberg, Judge.

Reversed and remanded (with directions).

D Calhoun Jones and Philip S. Alexander for appellant.

(1) An oral agreement to cancel a mortgage note is within the Statute of Frauds. Mo. Stat. Ann., sec. 2967, p. 1835. (a) It is an agreement respecting an encumbrance on land within the meaning of the statute. Wendover v. Baker, 25 S.W 918, 121 Mo. 273; Gates Hotel Co. v. C. R. H. Davis Real Estate Co., 52 S.W.2d 1011. (b) It also may be within that section of the statute relating to agreements not to be performed within a year. Mo. Stat. Ann., sec. 2967, p. 1835; Waller v. Tootle-Campbell Dry Goods, 59 S.W.2d 751. (2) When parties have deliberately put their engagements into writing in such terms as import a certain legal obligation, it is conclusively presumed that the whole of the engagement of the parties and the extent and manner of their undertaking have been reduced to writing, and parol evidence is not permitted to vary or contradict the terms of such writing, or to substitute a new or a different contract for it. 22 C. J. 1070, sec. 1380; Burk v. Walton, 86 S.W.2d 92; First Natl. Bank & Trust Co. v. Limpp, 221 Mo.App. 951, 288 S.W. 957. (a) The rule permitting the consideration of written contracts to be inquired into by parol evidence does not apply where the statement on the contract as to the consideration is more than a mere receipt or acknowledgment of payment, and is of a contractual nature. If the instrument states a contractual consideration, parol evidence is not admissible to contradict the consideration expressed. 10 R. C. L. 1044, sec. 238; Meyer v. Weber, 109 S.W.2d 702. (3) The parties to a cause are concluded by their pleadings and restricted in the maintenance of an affirmative defense to the special allegations upon which it is based. Provines v. Wilder, 87 Mo.App. 162; White v. United Brothers & Sisters, etc., 180 S.W. 406. (4) Hearsay is not admissible as secondary evidence. Krause v. Spurgeon, 256 S.W. 1072; Scrivener v. American Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1001. (5) Where a renewal note is sued on, and the defense of lack of consideration raised, it is proper for plaintiff to show that notes for which renewal note was given were not paid, since this testimony goes directly to question of consideration. This is too obvious to require citation of authority. (6) Wide latitude should be given in cross-examination; any facts contradicting, disproving or inconsistent with adversary's proof or position may be developed on cross-examination. Federal Chemical Co. v. Farmers Produce Exchange, 123 S.W.2d 612; Massman v. Muehlbach, 95 S.W.2d 808, 231 Mo.App. 72. (a) The agreement made in renewal of the notes involved in 1937, was admissible as an admission on the part of defendants Dubinsky that note sued on was executed by them for consideration. Globe American Corp. v. Nidler, 131 S.W.2d 340. (7) The evidence showed that the note sued on was supported by consideration as to defendants Dubinsky, and the trial court erred in finding that they executed the note solely for the accommodation of plaintiff. (a) Extension of time of payment of indebtedness is sufficient consideration for execution of note. 8 C. J. 236, 237; Cox v. Sloan, 57 S.W. 1052, 158 Mo. 411; Citizens Bank v. Oaks, 184 Mo.App. 598, 170 S.W. 679; North Side Finance Co. v. Sparr, 78 S.W.2d 892. (b) Extension of time of payment of note secured by mortgage, granted by holder to purchaser from mortgagor, does not release mortgagor where he consents to extension. Russkamp v. Fetchling, 101 S.W.2d 524. (c) A note given by a surety on another note or debt is supported by a valid consideration as to said surety. Montgomery v. Schwald, 166 S.W. 831, 177 Mo.App. 75. (8) Plaintiff's agent had no authority, implied or apparent, to make the agreement alleged by defendants, the agreement was not binding on plaintiff, and the trial court erred in finding that plaintiff entered into such an agreement. 2 C. J. 562, sec. 204; Burnett v. Royal Union Mut. Life Ins. Co., 112 S.W.2d 134; Murphy v. Holliway, 16 S.W.2d 107. (9) Where the answer to an action at law sets up an equitable defense and prays for affirmative relief, the case becomes an equitable suit and is governed by the rules of procedure applicable thereto. Wendover v. Baker, 25 S.W. 918, 121 Mo. 273. (10) An equity case, on appeal, is considered de novo by the appellate court, which may weigh the evidence for itself, makes its own findings, and determine what decree should be entered. Peikert v. Repple, 114 S.W.2d 999, 342 Mo. 274; May Stores v. Union Electric, 107 S.W.2d 41. (11) Evidence must be clear, cogent and convincing to warrant the setting aside and cancellation of written instruments and the adjudication that transactions are not what parties declare them to be. Barlow v. Scott, 85 S.W.2d 504. (12) A trustee in a deed of trust may apply proceeds of a foreclosure sale without regard to maturities of various notes, and sums advanced by the holder before the sale may be added to the lien. Henry v. Safford, 211 Mo.App. 308, 241 S.W. 951.

Dubinsky & Duggan for respondents Dubinsky.

(1) Appellant stipulating at the beginning of the trial that the questions before the court were of fact and proceeding throughout the trial on that theory, is estopped to question the sufficiency of the evidence on this appeal. Meffert v. Lawson, 287 S.W. 610, 315 Mo. 1091; Paulette v Sernes, 103 S.W.2d 573; Continental Cas. Co. v. Monarch Transfer & Storage Co., 33 S.W.2d 609. (2) An oral agreement within the statute of frauds is removed from the prohibition of the statute where it has been fully performed by one of the parties, the other party having had the benefit of such performance. Burke v. Walton, 86 S.W.2d 92, 337 Mo. 781; Swon v. Stevens, 45 S.W. 270, 143 Mo. 384; Roth v. Roth, 104 S.W.2d 314, 340 Mo. 1043; Gatesworth Hotel Co. v. C. R. H. Davis Realty Co., 52 S.W.2d 1011; Buxton v. Huff, 254 S.W. 79; Carlin v. Bacon, 16 S.W.2d 40, 322 Mo. 435; Bick v. Mueller, 142 S.W.2d 1021, 346 Mo. 746; VerStandig v. St. Louis Union Trust Co., 62 S.W.2d 1094; Walsh v. Walsh, 226 S.W. 236, 235 Mo. 181. (3) The payee of a note acquires no rights against a co-maker for the payee's accommodation, and the fact that an ostensible maker of a note was an accommodation maker may be shown by parol evidence. Dickherber v. Turnbull, 31 S.W.2d 234; Eckery v. Vine, 45 S.W.2d 924; Bunch v. Phillips, 79 S.W.2d 785; Maaser v. Huehnerhoff, 59 S.W.2d 723; Long v. Schaefer, 171 S.W. 690, 185 Mo.App. 641; Long v. Mason, 200 S.W. 1062; Natl. Bank of Commerce in St. Louis v. Laughlin, 264 S.W. 706, 305 Mo.App. 8; Farmers Bank of Conway v. Miller, 8 S.W.2d 92; Peoples Bank of Glasgow v. Yaeger, 6 S.W.2d 633; Peoples Trust & Savs. Co. v. Arthaud, 22 S.W.2d 860; Fischman-Harris Realty Co. v. Kleine, 82 S.W.2d 602. (4) Error cannot be assigned in the admission of respondents' Exhibit B, a warranty deed, on the grounds of a departure from the pleadings, in the absence of an affidavit of surprise by appellant. Sec. 969, R. S. 1939; Thomas v. Construction Co., 189 Mo.App. 623, 75 S.W. 258; Walton v. Carlisle, 313 Mo. 281, 281 S.W. 402. (5) There was no hearsay evidence relative to the letter, in evidence by way of secondary evidence, but if there was, an objection cannot be made to it on the ground of hearsay for the first time on appeal. Barth v. Faeth, 186 S.W. 52, 193 Mo. 402; Menard v. Goltra, 40 S.W.2d 1053, 323 Mo. 386; Wilder Natl. Tavern System v. Wilder, 18 S.W.2d 14. (6) There was no error in the excluding of the testimony of the witness Mullen as to whether or not the 1929 notes had been paid. There was no offer of proof. Byam v. Kansas City Pub. Serv. Co., 41 S.W.2d 945, 328 Mo. 813; Owens v. Thomas, 98 S.W.2d 561, 339 Mo. 532; Gricus v. United Rys. Co. of St. Louis, 237 S.W. 763. (7) The court did not err in limiting cross-examination of the witness Dubinsky. (a) The scope of cross-examination is within the discretion of the court. Gardner v. St. Louis Union Trust Co., 85 S.W.2d 86; Pogue v. Met. Life Ins. Co., 107 S.W.2d 144. (b) The general assignment on motion for new trial that the court erred in excluding competent, relevant and material evidence is not sufficient ground for review. The motion for new trial did not call the attention of the court to the limitation of cross-examination. Bartner v. Darst, 285 S.W. 449; Wilder Natl. Tavern System v. Wilder, 18 S.W.2d 114. (c) Appellant has not preserved in the record the document (appellant's Exhibit 4), which was the subject of cross-examination, and in the absence of the document, there is nothing in the record from which the court can determine whether the trial court was guilty of error in sustaining respondent's objection to the cross-examination. John Deere Plow Co. v. Riebel, 21 S.W.2d 206. (d) The renewal agreement of 1937 was admitted in evidence by the court. (e) Even if plaintiff's Exhibit 4, the renewal agreement of 1937, had been excluded, appellant has not incorporated it in the bill of exceptions and cannot complain of its exclusion. John Deere Plow Co. v. Riebel, 21 S.W.2d 206; Carthage Superior Limestone Co. v. Central Methodist Church, 137 S.W. 1028, 156 Mo.App. 671. (8) There was ample evidence to warrant a finding by the trial court that the note in suit was executed by the Dubinskys for the accommodation of appellant. (a) The agreement by appellant to release the Dubinskys on the 1929 notes, in consideration of their...