Bank of Dearborn v. Gabbert

• Decision Date: 06 December 1926
• Citation: 291 S.W. 142
• Court: Missouri Court of Appeals
• Parties: BANK OF DEARBORN v. GABBERT et al. No. 15634.

291 S.W. 142

BANK OF DEARBORN v. GABBERT et al. No. 15634.

Kansas City Court of Appeals. Missouri.

December 6, 1926.

Rehearing Denied January 3, 1927.

Writ Denied February 25, 1927.

Appeal from Circuit Court, Clinton County; Guy B. Park, Judge.

Action by the Bank of Dearborn against L. C. Gabbert and others. Judgment for plaintiff, and defendants R. H. Bruce and another appeal. Affirmed.

See, also, 274 S. W. 861.

Lucian J. Eastin, of St. Joseph, and D. H. Frost, of Plattsburg, for appellants.

W. S. Herndon, of Plattsburg, James H. Hull, of Platte City, and German, Hull & German, of Kansas City, for respondent.

ARNOLD, J.

This is an action upon a promissory note and separate contract. The petition is in two counts, the first of which is upon the promissory note for $4,100, dated August 11, 1919, by which defendants promised to pay plaintiff one year after date the sum above mentioned, with interest at 6 per cent. per annum. The note was signed by L. C. Gabbert, R. H. Bruce, D. E. Nichols, and W. H. Gabbert. The second count is based upon a written contract dated October 14, 1921, which is in words and figures as follows:

"Dearborn, Mo., October 14, 1921.

"This contract witnesseth: E. R. Bayley, late of Dearborn, Missouri, has this October 14, 1921, sold to L. C. Gabbert, W. H. Gabbert, R. H. Bruce, and D. E. Nichols of Dearborn, Mo., hereinafter called parties of the second part, all of the right, title, and interest of said E. R. Bayley in the Dearborn Democrat and the plant, machinery, and fixtures thereof, as described in a certain mortgage now held as collateral by the Bank of Dearborn, and all machinery, type, and other things added thereto since the making of said mortgage, also the book accounts and debts due and owing on this date of every character to the Dearborn Democrat or to E. R. Bayley as editor thereof.

"In consideration whereof second parties assume and agree to pay the indebtedness of, and hold the said E. R. Bayley harmless from the payment of a certain note signed by E. R. Bayley dated August 11, 1919, payable to the Bank of Dearborn in the principal sum of $4,100, together with all the accrued interest thereon or which may accrue thereon hereafter. Second parties further agree to pay all debts for machinery, etc., contracted for by the said E. R. Bayley for the use and benefit of the Dearborn Democrat now outstanding and unpaid, and all other obligations contracted by said E. R. Bayley for the Dearborn Democrat and to carry out and perform all unexecuted contracts entered into by E. R. Bayley for and to the use of the Dearborn Democrat.

                  "Witness our hands the day and year first
                above written. [Signed] L. C. Gabbert
                                       "E. R. Bayley
                                       "W. H. Gabbert
                                       "R. H. Bruce
                                       "D. E. Nichols
                

"Accepted and agreed to:

                           "[Signed] Bank of Dearborn,
                    "[Signed] By W. H. Gabbert, Cashier."
                

This is the second appeal of this case. At the first trial there was a judgment for defendants, and plaintiff appealed to this court. The judgment was reversed, and the cause remanded for a new trial because of error in the admission of certain testimony of defendants R. H. Bruce and D. E. Nichols which this court held to be violative of the rule that parol evidence cannot be admitted far the purpose of varying the terms of a written contract. Bank of Dearborn v. Gabbert et al. (Mo. App.) 274 S. W. 861. The cause was retried, resulting in a directed verdict for plaintiff, and defendants Bruce and Nichols now appeal.

We do not deem it necessary to state herein the facts in detail, but refer to our former opinion in the case for a complete statement thereof. During the progress of the last trial plaintiff dismissed the first count of the petition, and the trial proceeded to judgment upon the second count, which, as above stated, is based upon the written contract heretofore set out. The appealing defendants base their defense upon their answer, setting up want of consideration for the contract upon which plaintiff's case (with the first count eliminated) is based.

The answer to the second count of plaintiff's amended petition alleges:

That the said contract is void and of no effect for the reason that there is no consideration therefor; "that the said Bayley paid them nothing for their signatures thereto, and that they received nothing for their said signatures; that, long prior to the time their signatures were appended to the paper described in the second count of the petition, the said E. R. Bayley had failed to keep and perform his obligation to purchase said paper, and defendant L. C. Gabbert had re-entered upon the property of the Dearborn Democrat, which he (the said Bayley) had agreed to purchase, and had ousted the said Bayley and had terminated all contractual and other relations with the said E. R. Bayley and all the right, title, and interest of every kind and character, if any, which he (the said E. R. Bayley) may have had under any arrangement with the said defendant L. C. Gabbert at the time the writing mentioned in the second count of the petition was signed, had long since expired, and the said Bayley had abandoned all attempts and efforts to comply with said contract; that the said Bayley by said writing sold these defendants nothing, and had nothing to sell them; that the $4,100 note described in said contract and given by said Bayley to plaintiff bank had become null and void by reason of the mutual abandonment of the contract of purchase entered into between him and defendant L. C. Gabbert, and that the signatures of these defendants to the writing described in the second count of the petition were wholly without consideration, and said writing was and is void and of no effect, and gives to plaintiff bank no right of action against these defendants, and plaintiff bank was and is cognizant of all the transactions and knew all the facts herein alleged."

The facts necessary to be kept in mind on this review are as follows: On August 11, 1919, L. C. Gabbert purchased of Frank C. Ives a newspaper published at Dearborn, Mo., for the price of $4,600, paying $500 cash and executing his note for $4,100 payable to plaintiff herein. Plaintiff furnished the sum of $4,100, which was paid to Ives and his wife, and took therefor a note for $4,100, secured by a chattel mortgage in which all the personal property of the newspaper was described. Both the note and the chattel mortgage were signed by L. C. Gabbert, R. H. Bruce, D. E. Nichols, and W. H. Gabbert. At that time W. H. Gabbert was cashier of plaintiff bank.

It appears that the names of Bruce and Nichols were placed on the note after its execution by L. C. Gabbert; that chiefly through the efforts of L. C. Gabbert the newspaper plant was sold to E. R. Bayley, who took charge thereof about August 21, 1919. In payment for the plant, Bayley executed his demand note payable to plaintiff herein in the sum of $4,100. This note and the note and chattel mortgage executed by the Gabberts, Bruce, and Nichols, were pinned together and held by the bank as one transaction. Bayley was unable to reduce the principal of said note and in fact paid only one installment of interest. Accordingly he was advised by L. C. Gabbert to seek other fields and to surrender the newspaper. Bayley refused to do this unless protected in the payment of his $4,100 note held by the bank and. also all outstanding indebtedness incurred by him in the operation of the paper. Thereupon the contract above set out was entered into by the...