Avery Company v. Powell

• Decision Date: 17 November 1913
• Citation: Avery Company v. Powell, 161 S.W. 335, 174 Mo.App. 628 (Kan. App. 1913)
• Parties: AVERY COMPANY, Appellant, v. T. A. POWELL, Respondent
• Court: Kansas Court of Appeals

161 S.W. 335

174 Mo.App. 628

AVERY COMPANY, Appellant, v. T. A. POWELL, Respondent

Court of Appeals of Missouri, Kansas City

November 17, 1913

Appeal from Callaway Circuit Court.--Hon. D. H. Harris, Judge.

REVERSED AND REMANDED (with directions).

S. D Stocks, C. M. Hay and H. N. Eversole for appellant.

A. C Whitson and J. R. Baker for respondent.

OPINION

TRIMBLE, J.

Plaintiff sued the defendant as guarantor of a note executed by I. D. Kemp evidencing one of the four deferred payments on a threshing machine sold by plaintiff to Kemp. The price of the machine was $ 1050, and, as Kemp was not able to pay any cash at the time of purchase, the above amount was divided into four notes of $ 262.50 each, one due September 1, 1909, another November 1, 1909, the third September 1, 1910, and the fourth (the guaranty of which is the subject of this suit) due November 1, 1910; all four of the notes being secured by chattel mortgage on the machine.

Prior to the sale defendant had an arrangement with plaintiff's selling agent, that for every sale defendant assisted in making, he was to receive a part of the commission. Consequently when plaintiff's selling agent appeared in defendant's store and asked him if he knew where a machine could be sold, defendant told him of Kemp and went with the agent to see him. On the way, the agent agreed to give defendant fifty dollars if they succeeded in making a sale of the machine at $ 1050. It was ascertained, however that Kemp could not pay anything down, and, as the plaintiff company would not sell to him on those terms, as he had no credit, defendant offered to guarantee one-half of the purchase price. The dispute is over which particular half defendant agreed to guarantee. The sale was made in July, 1909, and defendant insists that he agreed to guarantee the one-half falling due that year, namely, the note falling due September 1, 1909, and the one falling due November 1, 1909. Plaintiff contends that nothing was said about which two of the four notes defendant was to guarantee.

The proposition to buy the machine on the terms above indicated with defendant as guarantor of one-half the purchase price was mailed to the plaintiff company for its acceptance. Accompanying it went a statement, dated July 1, 1909, of the financial condition of defendant, signed by him; and also a contract, bearing his signature, stating that, for value received and in consideration of credit being extended to Kemp, defendant would "guarantee the payment of certain of his notes given for the purchase price thereof to the amount of $ 525, as follows: Note for $ 262.50 due Nov. 1, 1909; Note for $ 262.50 due November 1, 1910."

The company accepted the proposed contract and sold the machine to Kemp. When it arrived where it was to be set up and delivered, plaintiff's selling agent had Kemp to execute the chattel mortgage on the machine and the four notes above mentioned, and also had defendant to sign a written contract of guaranty on the back of two of said notes. It is defendant's contention that the agent, by fraud, succeeded in getting him to guarantee the second note, due November 1, 1909, and the last note, due November 1, 1910, when the agreement and understanding was that defendant would guarantee only the first two notes falling due the same year and season the machine was purchased. Kemp paid the first note when due, and when the second note fell due, defendant assisted Kemp to the extent of $ 200 in paying that off. By reason of the payment of the first two notes, defendant insists the contract of guaranty has been fully performed.

The answer pleaded fraud in the obtaining of defendant's signature to the fourth instead of the first note; and, in another count, set up a counterclaim for the fifty dollars commission due him on the sale of the machine. The jury found a verdict for defendant assessing his damages under the counterclaim at $ 9.97, this being the balance of defendant's commission which, according to all the evidence, had remained unpaid. However, it had been credited upon the note before suit was instituted. So it was only in the event that defendant's charge of fraud was successful, that he would be entitled to this sum on his counterclaim.

There are many points raised and discussed by both sides. In the view which we take of the case, however, it is not necessary to notice more than one or two of them. Stated together as one they are that under the pleadings and the evidence in the case there was no defense to the cause of action stated in plaintiff's petition. The answer was not verified. The fraud charged pertained to the execution of the contract. Hence the execution of the instrument sued on must be adjudged confessed. [Sec. 1985, R. S. Mo. 1909.] And fraud in the execution of the instrument sued on cannot be relied on if the answer is not verified. [Beck v. Obert, 54 Mo.App. 240.] Defendant contends that this rule is not applicable as no objection nor exception to evidence in support of fraud was made on this ground by plaintiff. The record shows there was, also that such objection and exception was preserved in the motion for new trial. However, even if there were no objection nor exception made and saved by plaintiff in the record, still there was ample evidence offered to affirmatively support plaintiff's cause of action, and defendant's evidence showed that none of the facts were disputed except the sole question as to fraud in obtaining defendant's guaranty to the note dated November 1, 1910, instead of to the note dated September 1, 1909. And as to this question of fraud, defendant's evidence is insufficient, as matter of law, to sustain it.

In the agreement of July 1, 1909, by which defendant agreed to guarantee two of the four notes, and upon which plaintiff agreed to sell Kemp the machine. it was stated that defendant would guarantee the note due November 1, 1910, which is the note now in controversy. Defendant does not claim that when he signed this contract he did not have his glasses, nor does he swear that he did not sign the agreement to guarantee. He would not say he did not sign it but only that one of the letters in his name did not look right. True, he says he did not agree in writing that day to guarantee any notes but only gave a written statement...