Catterlin v. Lusk
| Decision Date | 02 February 1903 |
| Citation | 71 S.W. 1109,98 Mo.App. 182 |
| Parties | J. M. CATTERLIN, Appellant, v. B. E. LUSK et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court.--Hon. W. W. Graves, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Smith & Denton for appellant.
(1) Under the circumstances the defendants will be each as conclusively bound by the terms of their written contract as if they had fully read and re-read the same any number of times. Snider v. Express Co., 63 Mo. 383; Kellerman v. Railroad, 136 Mo. 188; Robinson v Jarvis, 25 Mo.App. 425; School District v. Ins Co., 61 Mo.App. 600. (2) Under the facts as stated in proposition 1, oral testimony was not competent and should not have been received by the court to contradict the terms of the contract, as evidenced by the note sued on and the deed of trust securing the same, which recited the note in suit. Kingman v. Shawley, 61 Mo.App. 61; Van Ravenswaay v. Ins. Co., 89 Mo.App. 77; Crim v Crim, 162 Mo. 552. (3) Under the defendants' own answer and their own evidence, plaintiff had a perfect right, under the law, to contract with defendants for payment by them, directly to him, of a commission or fee or compensation for making this loan, although he was at the time to receive a commission from the Missouri Saving Association. Casey v. Donovan, 65 Mo.App. 28.
Francisco & Clark for respondents.
No briefs filed.
This is an action which was brought before a justice of the peace on a promissory note. In the circuit court, where the cause was removed by appeal, the defendants filed an amended verified statement admitting the execution of the note but alleging the same was procured by fraud. It was therein further alleged that the plaintiff was a loan agent in Butler and agreed to loan them eighteen hundred dollars upon certain real estate security in Bates county; said loan was to be made by the Missouri Savings Association, which loan was to run for a period of six years and to secure which the defendants agreed to execute a deed of trust on their real estate securing a coupon bond for eighteen hundred dollars; and also another note to the said savings association for two hundred sixteen dollars which was also to be secured by a second deed of trust on the said real estate, and in addition thereto that the defendant should pay the plaintiff for an abstract of the title to said real estate, and that these were the only papers, which, under the contract, they were to execute, and the only obligations they were to incur were to be the payment of said two notes and the plaintiff's charges for the abstract. That in fraud of the defendants the plaintiff wrote up the note in suit made payable to himself, and being for the sum of one hundred dollars, and that when they executed the note they did not read the same but relied upon the statements of the plaintiff that it was one of the papers which they had agreed to execute for the purpose of securing the loan as stated, and that the same was never intended to be executed or delivered by them, and that there was no consideration for the note.
The evidence adduced at the trial was in substance about this: The defendant B. E. Lusk, testified that he made the agreement with the plaintiff for the loan and that at the time of the execution of the note he did not know he was signing any such paper, did not read it, and did not know that he had executed the note for quite a while thereafter; that he was a graduate and practicing physician, wrote, read and understood the English language; that the papers which he was to execute to secure the loan were taken by himself from the office of the plaintiff in Butler to where he lived in the country, ten miles away, where all the defendants executed the two notes to the Missouri Savings Association, and the two deeds of trust securing the same; that he sent for a notary public who came over and took the acknowledgment of each of the defendants to the papers which they executed; and that at this time they executed the note in suit without reading it and supposing it to have been one of the papers which was executed to secure the eighteen-hundred-dollar loan. That a deed of trust securing this note was subscribed and acknowledged at the time, before this same notary public, and in which deed of trust it was expressly recited that it was subject to the deed of trust securing the eighteen-hundred-dollar loan to the said saving association; that when the papers were all delivered to him at the office of the plaintiff in Butler for execution, the final agreement between him and plaintiff was that if he would take these papers down there, have them signed up and acknowledged where acknowledgment was required and return the same to him, that he would then turn over to them the eighteen-hundred-dollar loan.
The defendant C. A. Lusk testified that he had first mentioned the matter of this loan to plaintiff, but that he was not present at the time the contract was made between his brother, B. E. Lusk, and plaintiff, Catterlin; that the papers were all executed and acknowledged at the home of his brother, ten miles from Butler, before a notary public; that he was also a graduate and practicing physician and understood the English language and understood the note in suit and the deed of trust which secured it, but that in fact he did not read the papers at the time of the execution, but after they were executed he brought them to Butler and delivered them to the plaintiff, and upon such delivery he received from the plaintiff the proceeds of the eighteen-hundred-dollar loan.
The plaintiff testified that the contract for securing this loan was made between himself and the defendant, C. A. Lusk, and that by the terms of the agreement he undertook to secure the eighteen-hundred-dollar loan, if in addition to the execution of the two notes and deeds of trust and the payment of the abstract...
To continue reading
Request your trial