"Action upon a foreign judgment for $7,004. Judgment for defendant. Plaintiff appeals. The parties are brothers, and both formerly lived in Ohio. The defendant was in debt to the plaintiff, and on the 10th of November, 1881, was about to remove to Missouri. The plaintiff demanded a settlement, and the defendant, as he says, because he would have had trouble if he had not done so, gave the plaintiff his note for $4,000, payable at one year, with 6 per cent. interest, in settlement of the debt. The note contained a cognovit authorizing any attorney at law to appear in any court of the United States, waive process, enter appearance, and confess judgment against defendant for the amount due on the note, including interest and costs, and to release all errors. On the 14th of October, 1891, the plaintiff instituted suit against the defendant in the court of common pleas of Stark county, Ohio, upon the note. Pursuant to the terms of the note, W. J. Piero, an attorney of that court, entered the defendant's appearance, waived process, and confessed judgment for $7,004, the principal and interest due on the note, released all errors, and waived all rights of appeal. Thereafter the plaintiff instituted this suit in the Barton county circuit court on the foreign judgment. The answer of the defendant is a general denial, with special pleas: (1) That the Ohio court had no jurisdiction, because defendant was, and had been for over 10 years, a resident of Barton county, Mo., and was not summoned and did not appear in the Ohio court, and never authorized Piero or any one else to appear for him, and that at the time the suit was begun in Ohio the debt was barred by limitation in Missouri; (2) that the parties are brothers, and the defendant, being in debt to the plaintiff, was about to remove to Missouri, and plaintiff asked defendant to sign a note for the balance due plaintiff, saying he only wanted a settlement and would never enforce the note against defendant; that defendant did not in fact owe the plaintiff as much as $4,000; that he signed the note, understanding that it was only a promissory note, and not knowing that it contained a provision authorizing a confession of judgment, and never having agreed to grant such authority to any one; that the plaintiff falsely and fraudulently represented to him that it was only a promissory note, and concealed from him the fact that it contained a cognovit; and that, relying on the statements of the plaintiff, he signed the note without reading it or examining it. The trial developed the facts to be that notes of this character are usually used in Ohio; that the defendant had been largely engaged in dealing in cattle while he lived in Ohio, and had executed many such notes, and that several judgments had been rendered against him there upon similar notes under the cognovit therein contained; that he had procured many loans from the banks upon similar notes, and that the banks would not make loans upon any other kind of paper; that he had given similar notes to other persons before leaving Ohio; that there were no representations made to him about the character of this note when he signed it, and no attempt made to conceal its character from him; that he owed his brother some amount, — the brother says $5,000, and he says it was not so much, — and that his brother offered to settle it if he would give him this note for $4,000; and that he did so because `I expect I would have had to sign the note or got into trouble.' The court refused all the instructions asked by the plaintiff, and on its own motion instructed the jury as follows: `You are instructed that your verdict will be for the plaintiff for the full amount of the judgment sued on, with interest on the same from October 14, 1891, to date, at the rate of 6 per cent. per annum, unless you further believe, from the preponderance or greater weight of the evidence, that the defendant, at the time he signed the note upon which the judgment sued on is based, had no knowledge that the said note contained a power of attorney to confess judgment and had no intention to sign such a note, in which case your verdict will be for the defendant.' The jury found for the defendant, judgment was entered upon the verdict, and after proper steps the plaintiff appealed.
"1. There was no fraud, misrepresentation, trick, or concealment in the procurement of the note. It may be true the defendant did not read it before he signed it; but he was sui juris, had full opportunity to read it, and deliberately signed it. The law presumes he knew its contents, and he cannot be permitted now to take advantage of his own fault or negligence. O'Bryan v. Kinney, 74 Mo. 125; Snider v. Express Co., 63 Mo. 376; Railway v. Cleary, 77 Mo. 637; Mateer v. Railway Co., 105 Mo. 352, 16 S. W. 839; Kellerman v. Railroad Co., 136 Mo. 177, 34 S. W. 41, 37 S. W. 828; 1 Whart. Conv. § 196. The defendant relies on Wright v. McPike, 70 Mo. 175, approving what was said in Briggs v. Ewart, 51 Mo. 249, as follows: `It may be assumed as an axiom that no one can be made a party to a contract without his own consent. Although his signature may be put to the writing, and may have been written by himself, yet if he did not know what he was signing, but acted honestly under the belief that he was signing some other paper, and not the one he really signed, he ought not to be bound by such signature.' In McPike's Case this was quoted, and then it was said: `Although that case has been overruled, the doctrine announced in the foregoing extract from the opinion was not disturbed by the court in the
overruling decision. As between the original parties, if one has procured the signature of the other to a written agreement, whether by fraud or not, which does not contain the contract made by the parties, but a different one, he cannot be permitted to avail himself of that contract, but must stand by the one which was in fact entered into by both parties.' In Briggs v. Ewart, supra, it was held that such a defense could be made, even if the note was held by a bona fide purchaser for value and without notice before maturity. This case, as was also the case of Corby v. Weddle, 57 Mo. 452, which followed it, was expressly overruled in Shirts v. Overjohn, 60 Mo., loc. cit. 312. The doctrine further announced in McPike's Case, that as between the original parties such questions are open to inquiry in a suit at law upon the note, whether the note was made by fraud or not, is no longer the law in this state, as the cases cited above clearly show. Courts of equity set aside contracts procured by fraud, and reframe contracts where there has been a mutual mistake of the parties; but it is an invariable rule of law that, in the absence of fraud or mistake, parol evidence is not admissible to contradict or vary a written contract. The written contract is conclusively presumed to merge all prior negotiations, and to express the final agreement of the parties. To permit a party, when sued on a written contract, to admit that he signed it, but to deny that it expresses the agreement he made, or to allow him to admit that he signed it, but did not read it or know its stipulations, would absolutely destroy the value of all contracts and negotiable instruments. The reason underlying the rule is to give stability to written agreements, and to remove the temptation and possibility of perjury, which would be afforded if parol evidence was admissible. But, aside from these considerations, this is a suit upon a judgment, and not upon the note. The note is merged in the judgment, and the defenses that might have been available, if properly interposed in the suit on the note, are not open to review here. Even if there was fraud in the note constituting the cause of action, the judgment cannot be attacked. Only fraud in the very act of procuring the judgment can be interposed as a defense to the judgment, even in a direct attack in equity to set aside the judgment. Hamilton v. McLean, 139 Mo. 678, 41 S. W. 224; Bates v. Hamilton, 144 Mo., loc. cit. 11, 45 S. W. 641.
"2. Judgments upon notes containing such a cognovit are valid judgments in Ohio. Matthews' Lessee v. Thompson, 3 Ohio, 272; ...
