Deitz v. Corwin

Decision Date31 January 1865
Citation35 Mo. 376
PartiesDEITZ & WALDE, Plaintiffs in Error, v. CHARLES J. CORWIN and WILLIAM G. CHEENEY, Defendants in Error.
CourtMissouri Supreme Court

Error to Cole Circuit Court.

G. T. White, for plaintiffs in error.

It was admissible to allege and show what the understanding of the parties was as to their liability at the time of making the instrument; and moreover, Corwin's name being written on the note at the time of its making, made him an original promisor. (Lewis v. Harvey, 18 Mo. 74-82; Perry v. Barnett, 18 Mo. 140-145; Schneider v. Schiffman, 18 Mo. 571-2; Baker v. Black, 3 Mo. 225-7.)

Parol evidence is admissible to show how the parties stood on the paper, whether principal, security, endorser or guarantor (Christy's Adm'r v. Herne, 24 Mo. 247), and what was their intention. (3 Ves. & B. 3.) The rule only forbids a change by parol of the language of the instrument, and does not forbid showing by circumstances the understanding of the parties. (1 Greenl. Ev. §§ 277, 287-8, 295.) It is immaterial upon what part of the instrument Corwin signed his name. If it was signed with the view of making him a joint or original promisor, he is now liable. (Will. Pers. Prop. 73; Garnett v. Ferguson, 9 Mo. 125, 128.) The rule only excludes evidence that would change the language of the instrument, and not the circumstances in which the party was placed. (1 Greenl. Ev., § 297.)

J. E. Belch, for defendant in error.

Corwin is to be treated as an indorser of an inland bill of exchange, and should have had notice. (R. C. 1855, p. 296, § 16.) Parol evidence cannot be introduced to vary written agreements. (29 Mo. 307; Edw. Bills, 315.) The petition improperly joins two distinct causes of action in one count.

BATES, Judge, delivered the opinion of the court.

The petition in this case is as follows: Plaintiffs state that defendants by their writing hereunto annexed, dated August the 8th, 1859, promised to pay the sum of three hundred and twelve dollars and fifty cents, four months after date. That said Cheeney delivered said writing when executed to plaintiff, with the name of the said Corwin endorsed on the back of the same, with the understanding then existing between the plaintiffs and defendants, that said Corwin was security on said instrument, and the same was made out and delivered to plaintiffs to secure to them the payment of said sum of money owing from said Cheeney to plaintiffs,” with an admission of a credit, and a prayer of judgment.

The instrument annexed to the petition is as follows: “$312.50. Jefferson City, August 1, 1859. Four months after date, I promise to pay to the order of C. J. Corwin three hundred and twelve 50/100 dollars, for value received, negotiable and payable with [without] defalcation or discount, and with interest from date at the rate of ten per cent. per annum until paid. W. G. Cheeney.” On the back of which was the endorsement C. J. Corwin.”

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15 cases
  • Bagnell Timber Co. v. Missouri, Kansas & Texas R. Co.
    • United States
    • Missouri Supreme Court
    • March 17, 1904
    ... ... Woodson, 4 Mo. 114; Hadwen ... v. Ins. Co., 13 Mo. 473; Hall v. Harrison, 21 ... Mo. 227; Chambers v. Carthel, 35 Mo. 374; Deitz ... v. Corwin, 35 Mo. 376; Curry v. Lackey, 35 Mo ... 389; Baker v. Berry, 37 Mo. 306; Dyer v ... Krayer, 37 Mo. 603; Bowling v ... ...
  • The First National Bank of St Charles v. Payne
    • United States
    • Missouri Supreme Court
    • July 2, 1892
    ... ... Rickey v. Dameron, 48 Mo. 61; Marshall v ... Cabanne, 40 Mo.App. 38; Dietz v. Corwin, 35 Mo ... 376; Schnell v. P. M. Co., 89 Ill. 581. (6) When one ... of the joint obligors in a contract dies, the obligee is not ... thereby ... ...
  • Toler v. Coover
    • United States
    • Missouri Supreme Court
    • May 17, 1934
    ... ... Even if we were passing on a demurrer to the petition we ... could not consider this exhibit. [Chambers v ... Carthel, 35 Mo. 374; Deitz v. Corwin, 35 Mo ... 376; Phillips v. Evens, 64 Mo. 17; Pomeroy v ... Fullerton, 113 Mo. 440, 21 S.W. 19; State ex rel. v ... Haphe, 31 S.W.2d ... ...
  • Butler v. Gambs
    • United States
    • Missouri Court of Appeals
    • March 21, 1876
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