Black v. Epstein

• Decision Date: 01 April 1902
• Citation: 67 S.W. 736,93 Mo. App. 459
• Parties: BLACK v. EPSTEIN.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Court of Appeals

67 S.W. 736

93 Mo. App. 459

BLACK v. EPSTEIN.¹

Court of Appeals of St. Louis, Missouri.

April 1, 1902.

NOTES—SUIT—VARIANCE—ANSWER—ADMISSION—FALSE REPRESENTATIONS.

1. A petition alleged that defendant made and delivered to plaintiff a note for $7,550, and that as part of said note it was agreed in writing that the note should be paid in three payments, January 1, 1900, July 1, 1900, and January 1, 1901. Plaintiff offered in evidence a note dated May 1, 1899, payable in 19 months, and having beneath the note an agreement as to payments as stated in the petition. Defendant objected to the note on the ground of variance, in that the note became fully due in 19 months. Held, that there was no variance that could prejudice or surprise defendant.

2. Defendant's answer having admitted the execution of the note described in the petition, a contention that the clause below the signature was no part of the note, and so not admitted, was of no merit.

3. An assertion by the seller of a business, in the purchaser's presence, that the business would make "a bushel of money" and similar statements, were not false representations such as would avoid the purchaser's note given for the business.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by M. H. Black against Simon Epstein. From a judgment for plaintiff, defendant appeals. Affirmed.

F. A. Wind, for appellant. C. H. Krum, for respondent.

GOODE, J.

A judgment was recovered in the court below on the following instrument:

"St. Louis, May 1st, 1899. Nineteen months after date we promise to pay to the order of M. H. Black ($7,550.00) seven thousand five hundred and fifty dollars, with interest at the rate of six per cent. per annum from date until paid, for value received, negotiable and payable without defalcation or discount payable. I. M. Spitz. Simon Epstein.

"It is further agreed between M. H. Black, Simon Epstein, and Isidor M. Spitz that the amount of seven thousand five hundred and fifty dollars, embracing the above note, shall be paid in three payments, with interest included, viz., January 1, 1900, July 1, 1900, and January 1, 1901. It is also agreed by M. H. Black that the above note shall not be offered for discount in any bank or private party."

When the above note was offered in evidence, appellant objected to its admission on the ground that it was not the paper described in the petition, since the petition describes a note payable in three installments of $2,500 on the 1st days of January and July, 1900, and the 1st day of January, 1901, whereas the above instrument became fully due 19 months after date. It is important to notice the petition and answer in this connection. The petition contains the following averments: "The plaintiff states that heretofore, to wit, on the 1st day of May, 1899, the defendant and I. M. Spitz made and delivered to the plaintiff their promissory note (herewith filed) whereby they promised, for value received, to pay to the order of plaintiff the sum of seven thousand five hundred and fifty dollars, without defalcation or discount, with interest at the rate of six per cent. from date; that as part of said note, and the agreement evidenced thereby, it was agreed in writing between the said defendant and the said I. M. Spitz and the plaintiff that the amount of the said note, together with the interest thereon, should be paid in three payments, to wit, on January 1, 1900, July 1, 1900, and January 1,...