Chamois v. Smith

• Decision Date: 16 June 1924
• Docket Number: No. 15043.,15043.
• Citation: 263 S.W. 475
• Parties: PEOPLE'S BANK OF CHAMOIS v. SMITH et al.
• Court: Missouri Court of Appeals

263 S.W. 475

PEOPLE'S BANK OF CHAMOIS v. SMITH et al.

No. 15043.

Kansas City Court of Appeals. Missouri.

June 16, 1924.

Appeal from Circuit Court, Osage County; It. A. Breuer, Judge.

"Not to be officially published."

Action by the People's Bank of Chamois against Ora Smith and others. From an adverse judgment, plaintiff appeals. Affirmed.

James Booth, of Pacific, John P. Peters, E. M. Zevely and Vosholl & Monroe, all of Linn, for appellant.

Wm. A. Davidson and George I. Gave, both of Linn, for respondents.

ARNOLD, J.

This is an action to recover a balance due on a note given by defendants to plaintiff. Plaintiff is a corporation organized and existing under the laws of the state of Missouri and doing a banking business at Chamois in Osage county. On January 16, 1919, defendant Ora Smith borrowed from plaintiff the sum of $6,400 to be used in the purchase of land, and gave his note for said amount; payable one year after date at the rate of 6 per cent. interest per annum. The other defendants signed the note, presumably on its face, though the note afterwards was destroyed in a fire, and is not set out in the pleadings. In addition to the personal security of all the defendants except Ora Smith, there was given by Ora Smith and his wife a deed of trust on 205 acres of land in Osage county, for the purchase of which the money was borrowed. Defendant John H. Smith, father of Ora Smith, died after this suit was brought, and the cause of action was revived against his estate, his administratrix entering her appearance and becoming a party hereto.

The petition alleges the execution of the note, and lists credits thereon in the total sum of $5,708.50, the last item credited as shown by the testimony being the sum of $4,934.50, being the proceeds of the sale of the land under said deed of trust. The answer. admits the execution of the note, and alleges that defendants, other than Ora Smith, had been discharged from liability thereon by the act of plaintiff in extending, for a valuable consideration, the time of payment of said note for an additional period of one year, and had also changed the rate of interest thereon from 6 per cent. to 8 per cent. per annum without the knowledge or consent of said defendants, There was also incorporated in the answer a general denial.

By agreement the cause was tried to the court without the aid of a jury. The judgment was in favor of plaintiff and against Ora Smith and Josephine Smith, his wife, and Eliza J. Smith, administratrix of the estate of John H. Smith, deceased, for the sum of $2,303.50, and in favor of H. F. Gidinghagen, Flemons Rhoads, and August Frederick. Plaintiff's motion for a new trial being unsuccessful, an appeal was perfected to this court.

There was evidence showing that long after the maturity of said note plaintiff entered into an agreement with said Ora Smith, without the knowledge and consent of the other defendants except John H. Smith, whereby, for the payment of an additional 2 per cent. interest, the time of payment of said note was extended for an additional period of one year. The said valuable consideration was a note for $128 given by Ora Smith and signed also by his father, John H. Smith, which said note afterwards was paid.

There is no substantial difference between the parties as to the facts in the case; the dispute lies in the application of the law to the facts in evidence It is charged by appellant that the court erred in refusing to sustain its demurrer to the evidence of defendants. This charge is the basis of this appeal, and involves the question of whether, under the facts, the defendants other than Ora Smith and his wife and the estate of John Smith were properly held to be not liable on the note. It is urged that, the other defendants being primarily liable on the note, the extension of time did not operate as a discharge of their liability.

This position we find to be untenable. The act of plaintiff in extending the time for payment, for a valuable consideration, must be held to have created a new contract to which such defendants were not parties. The Supreme Court has ruled against plaintiff on this point. In Fisher v. Stevens, 143 Mo. 181, 44 S....