Citizens Bank of Pomona v. Martin

• Citation: 156 S.W. 488,171 Mo.App. 194
• Parties: CITIZENS BANK OF POMONA, Respondent, v. P. M. MARTIN AND LULIE MARTIN, Appellants
• Decision Date: 05 May 1913
• Court: Court of Appeal of Missouri (US)

156 S.W. 488

171 Mo.App. 194

CITIZENS BANK OF POMONA, Respondent, v. P. M. MARTIN AND LULIE MARTIN, Appellants

Court of Appeals of Missouri, Springfield

May 5, 1913

Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.

Judgment affirmed.

J. N Burroughs for appellant.

(1) The party cannot raise the defense of the Statute of Frauds where he has not pleaded it. Scharrff v. Klein, 27 Mo.App 549; Hobart v. Murry, 54 Mo.App. 249; Hackworth v. Zeitinger, 48 Mo.App. 32. (2) The objection to the contract that it is within the Statute of Frauds cannot be raised by demurrer. Sherwood v. Sexton, 63 Mo. 78. (3) The statute only applies to promises made to the creditor and not to promises made to the debtor by the creditor. Howard v. Coshow, 33 Mo. 118; Green v Estes, 82 Mo. 337. (4) We do not see any provision of the Statute of Frauds that would require a contract set up in the answer to be in writing. If there were such provision the court took the matter upon itself to raise the question. It was not even raised by motion to strike out the pleading and motion tendered by defendants. There was not even an objection offered against it. We know of no rule that would permit a raising of this question by the court.

M. E. Morrow for respondent.

(1) A motion to vacate a default judgment filed more than four days after such judgment, is not the ordinary motion for a new trial, and cannot be so treated. Harkness v. Jarvis, 182 Mo. 235. (2) The action of the trial court on a motion to vacate a default judgment is largely a matter of his own discretion, as is the granting of new trials generally. Bank v. Armstrong, 92 Mo. 265; Scott v. Smith, 133 Mo. 618. (3) There is no error in a trial court's refusal to vacate, on motion, a default judgment regularly entered, when it appears that defendant had no defense. Shroeder v. Miller, 35 Mo.App. 227; Bridge v. Tierman, 36 Mo. 439. (4) The answer tendered by appellants to the trial court stated no legal defense whatever to respondent's action on the promissory notes. Bircher v. Payne, 7 Mo. 462; Atwood v. Lewis, 6 Mo. 392; Bridge v. Tierman, 36 Mo. 439. (5) It would have been a senseless ceremony to have permitted appellants to file their proffered answer, as parol evidence would have been inadmissible on trial to have sustained its allegations. Because a note absolute upon its face, and complete in its terms, obtained without fraud, cannot be changed into a conditional one by parol evidence. Jones v. Jeffreys, 17 Mo. 577; Benson v. Harrison, 39 Mo. 303; Massmann v. Holscher, 49 Mo. 87; Jones v. Shaw, 67 Mo. 667; Wislizenus v. O'Fallon, 91 Mo. 184; Holloway v. Ins. Co., 48 Mo.App. 1; Keck v. Brewing Co., 22 Mo.App. 187; Higgins v. Cartwright, 25 Mo.App. 609; Reed v. Nicholson, 37 Mo.App. 646; Organ Co. v. Swartzell, 61 Mo.App. 490; Holmes v. Farris, 97 Mo.App. 305; Christian University v. Hoffman, 95 Mo.App. 488; Bank v. Reichert, 101 Mo.App. 253.

OPINION

FARRINGTON, J.

--This action was instituted on July 5, 1912, in the circuit court of Howell county. The petition declared on two promissory notes filed therewith, one dated November 11, 1911, due sixty days after date, for $ 1200, with interest at eight per cent, signed by P. M. Martin, with credits thereon which reduced the principal to $ 367.46, and the other dated February 1, 1912, due one day after date, for $ 710.97, with interest at eight per cent, signed by P. M. Martin and Lulie Martin.

On the twelfth day of August, 1912, at the July term of the court, a default judgment was entered which recites that defendants were legally served with process in said action, and which gives plaintiff $ 375.50 on the note first described and $ 731 on the other. That this was proper is not disputed as defendants had filed no answer. [Secs. 2093 and 2098, R. S. 1909.] Five days thereafter, and on the last day of the term, defendants appeared and filed a motion which was sworn to by P. M. Martin, accompanied by an answer which they offered to file in the case. The verified motion sets up the following reason for their default: "Defendants had employed an attorney, Mr. Livingston, to represent them in said cause, to file answer and make defense for them; that said attorney by reason of continued illness during this term of court, had been unable to appear in court and look after their interests; that on account thereof these defendants had made no appearance and had taken no steps to defend such action; that they had no knowledge of said conditions until after a judgment was rendered against them." It is then alleged that they have a meritorious defense, and they ask that the judgment rendered by default be set aside and that they be permitted to plead and make their defense to the action.

The answer which defendants offered to file admitted the execution of the notes, but set up the fact that the amounts evidenced by said notes were borrowed by defendants of the plaintiff under the following circumstances and conditions:

"The defendants informed plaintiff bank that they desired to borrow said sum of money for the purpose of investing in hogs to hold and feed through the winter and to put on the spring market; that they so informed the plaintiff bank, and that they would want to use said money for the purpose aforesaid until the spring following, and that they would need further sums of money with which to buy corn and feed to carry said stock through the winter and on to the spring market, and that unless they could get the use of the amount specified in said note until that time, and unless the plaintiff bank would further agree to furnish such further sums of money as defendants might need to feed and carry such stock through to the spring market as aforesaid, they would not borrow such sums as is evidenced by said notes, or make any investments in such hogs.

"Defendants further allege that the plaintiff bank then and there agreed to loan defendants said sums of money on the terms and conditions aforesaid, and further agreed to furnish defendants such further sums as might be necessary to feed and carry the stock said defendants proposed to buy through to the spring market; that in consideration of the mutual covenants, promises and agreement, as aforesaid, the defendants were led and induced to borrow the sums of money specified in said notes, and to execute the same; that had it not been for such promises and agreement on the part of the plaintiff bank defendants would not have borrowed said sums of money and executed said notes.

"Defendants further say that they took the money thus borrowed of plaintiff bank and invested the same in hogs according to their said agreement and understanding with plaintiff bank and otherwise carried out and executed all the terms and conditions of said contract on their part; that they had a splendid lot of hogs on hand which were at the time worth less than five cents per pound on the market, but said hogs were not fatted and ready for market, being merely stockers with splendid prospects of growth to large, thrifty, fatted hogs; that at the times last mentioned defendants could have purchased corn at sixty cents per bushel on which to feed and carry said hogs through the winter, but the plaintiff bank not only refused to furnish the further sums of money thus agreed upon for the purpose of feeding and carrying said stock...