Bass v. Sanborn

• Decision Date: 04 June 1906
• Parties: BASS v. SANBORN et al.
• Court: Missouri Court of Appeals

95 S.W. 955

119 Mo. App. 103

BASS v. SANBORN et al.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

Rehearing Denied July 2, 1906.

1. CANCELLATION OF INSTRUMENTS—GROUNDS — PLEADING — CONFLICTING THEORIES OF CAUSE OF ACTION.

Where, in an action to cancel a note, the bill alleged that the note was given for certain shares of stock which one of the defendants falsely and fraudulently represented were of a certain value, and further alleged that this same defendant represented that, if plaintiff would execute the note for the stock, the defendant referred to would pay the note, and that it was so executed for the accommodation of this defendant without any consideration, and on the representation of the defendant that he would protect plaintiff on the note and pay for the stock, the allegations as to fraudulent representations concerning the value of the stock, as well as evidence tending to prove these allegations, were immaterial, in view of the further allegation that the note was wholly without consideration and that it was never intended that plaintiff should pay the same.

2. EVIDENCE—VARYING WRITTEN CONTRACTS.

The maker of a note cannot, in a suit to cancel the same, be permitted to prove that at the time the note was executed it was agreed that he should not pay it.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Robert T. Bass against Henry B. Sanborn and others. From a decree for plaintiff, defendants appeal. Reversed and remanded.

Botsford, Deatherage & Young and Halstead & Halstead, for appellants. Scarritt, Griffith & Jones, for respondent.

ELLISON, J.

Plaintiff brought his bill in equity to set aside and cancel a promissory note for $1,000, which he had executed to defendant Sanborn. The judgment in the trial court was for the plaintiff. It appears from the allegations in the bill that Sanborn was president of the Goodloc-McClelland Commission Company, and that he sold to plaintiff 10 shares of the stock of the company for $1,000, and that then he proposed to sell him another 10 shares for $1,000. At first plaintiff declined to purchase the additional shares, but Sanborn falsely and fraudulently represented that the company had $18,000 in its treasury and was solvent, that $30,000 of its $50,000 capital was paid up in cash, that it had no losses, and that its assets, consisting of mortgages and notes, were as good as gold; that Sanborn represented that it would be better for the business of the company if he, plaintiff, would take these additional shares, and that it he would permit such additional shares to be issued in his name and execute the note in controversy and put up the additional shares as collateral to secure the same, that he (Sanborn) would pay for the stock (that is, pay the note) and protect plaintiff against any liability; that plaintiff, relying upon all said representations, thereupon did execute the note and that "it was made for the accommodation of...