Phœnix Mut. Life Ins. Co. v. Goessling

• Citation: 121 S.W.2d 182
• Decision Date: 08 November 1938
• Docket Number: No. 24709.,24709.
• Court: Court of Appeal of Missouri (US)
• Parties: PHŒNIX MUT. LIFE INS. CO. v. GOESSLING.

121 S.W.2d 182

PHŒNIX MUT. LIFE INS. CO. v. GOESSLING.

No. 24709.

St. Louis Court of Appeals. Missouri.

November 8, 1938.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be published in State Reports."

Action by the Phoenix Mutual Life Insurance Company against Richard F. Goessling on four alleged promissory notes. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Jones, Hocker, Gladney & Grand, of St. Louis, for appellant.

Randolph Mudd, of St. Louis, for respondent.

BECKER, Judge.

This is an action on four alleged promissory notes. Each count is in conventional form.

The defendant's answer in substance admitted that he signed the papers referred to in the petition, and that he had received the several sums of money stated therein, but alleged that the papers were signed by him as a direct result of the fraud, misrepresentation, and deceit on the part of plaintiff in that plaintiff fraudulently induced him to sign said papers by stating that they were not obligations on his part, but were mere memorandums of sums of money advanced for services rendered plaintiff by defendant, and that "the plaintiff told defendant that said sums were to be in the form of wages; and that plaintiff's cashier fraudulently failed to permit him to read said papers," and held out to defendant that said papers were mere memorandum receipts for money paid out to defendant as salary.

Defendant's answer further stated that the said papers were never intended by the parties to be obligations payable by defendant to the plaintiff, but were intended to be mere memorandums of salary paid by plaintiff to defendant, for work as an insurance salesman, for which plaintiff had agreed to pay defendant $175 per month.

Plaintiff's reply was a general denial of all allegations contained in defendant's answer, excepting that part of the answer which admitted the signing of the alleged notes and the receipt by defendant of the sums specified therein.

Plaintiff introduced the notes in evidence and rested. Defendant thereupon testified in his own behalf that having heard that plaintiff company was looking for insurance salesmen, he called upon Mr. Burkley, the general manager of the plaintiff company in the city of St. Louis, who gave him "some insurance literature designed to qualify him for the insurance business as a life work." Defendant testified that he read the literature and was then examined by Mr. Burkley, who told him that he had made a good grade and that in his opinion he would make a success as an insurance salesman, and would like him to become an agent of the plaintiff company; that he would give him a salary of $150 per month, and at Mr. Burkley's request the defendant, on the following day, brought his wife to Mr. Burkley's office and Mr. Burkley again said that he would pay defendant a salary of $150 per month; that his wife then said, "Mr. Burkley, suppose Mr. Goessling only makes a dollar and a half or two dollars and a half a week?" He said, "We will go right along with that, Mrs. Goessling, because I have taken a personal liking to Mr. Goessling, and I want him with the Phoenix Mutual." Mr. Burkley then told him to make up a budget of the exact amount of money which he would need to run his home. Two days later defendant went back to Burkley with a budget, which called for $140 per month. According to defendant, when the budget was shown to Burkley, he said, "We are going to go you one better. We are going to give you $175 per month," and that then Burkley brought out a written contract and read it to the defendant, and said to him, "Sign it here," which the defendant did; that Mr. Pickel, cashier of the plaintiff company, signed the contract as a witness, and was introduced to him by Burkley with the statement, "this is the gentleman that will pay you."

Defendant further testified that after he had been with the company about two weeks, he asked Burkley, "Is there any chance of getting any money?" Burkley replied, "Why, sure, come right ahead," and took him to Mr. Pickel "who stood behind a glass window with a hole large enough to put your hand through, just like a regular hole in a bank window." Pickel put a paper before him, which was one of the instruments herein sued upon as an alleged note, and said, "Sign here," and when defendant had signed the paper Pickel handed him a check for $87.50.

Defendant further testified that Burkley told him that if he made sales of insurance the commissions he thereby earned would be deducted from the amount of money "given him to run his business on, deducting the commissions from his salary"; that Burkley at no time made any reference to defendant signing any notes or borrowing money from the company, but called the "sums to be paid me salary, or drawing accounts against commissions"; that Burkley told him, "I have much confidence in you. I know you are going out and make good"; that relying on these statements made to him by Burkley, defendant went out and endeavored to sell insurance, and continued to do so for one month, during which time he succeeded in selling two policies; that he obtained four payments from Mr. Pickel in like manner to that outlined above, after which Mr. Burkley called defendant into his office and said, "Dick, I am disappointed in you, you will never make a life insurance man. We cannot go on. I have got to stop right now." Defendant testified "that is exactly what happened. It stopped right then and there. I went home and told my wife I had lost my job. She said, `That's tough.'"

Defendant further testified that when he obtained his first check from Mr. Pickel and signed the alleged note, Pickel told him "this is merely a memoranda for you to sign to show that I have paid you," and that relying on that statement he signed the paper.

During the course of defendant's testimony, and prior to his relating the conversations which he had with Burkley which led up to his employment as an agent of the plaintiff company, being questioned by counsel for plaintiff, defendant admitted that he had a written contract of employment with the plaintiff company, and identified a contract shown him by counsel for plaintiff as his contract of employment, and acknowledged his signature thereto, whereupon counsel for plaintiff objected to any testimony on the part of defendant as to any conversations or negotiations between defendant and Burkley which led up to the signing of the contract, on the ground that the negotiations were merged in the written contract, and that the contract itself was the best evidence, and that the terms thereof could not be varied by parol testimony on the part of defendant. This objection was overruled and defendant permitted to testify as outlined above. The written contract of employment was thereafter introduced in evidence.

Mrs. Goessling, defendant's wife, corroborated what her husband had testified to with reference to her conversation with Mr. Burkley.

The case was submitted to the jury who found for defendant on each of the four counts, and plaintiff in due course appealed.

Appellant contends that all the evidence introduced by defendant for the purpose of showing fraud in the execution of the notes was inadmissible for the reason that the answer was not verified, and that the execution of the notes therefore stands confessed.

Appellant relies upon section 965, Rev. St.Mo.1929, Mo.St.Ann. sec. 965, p. 1235, which provides that "when any petition or other pleading...