Ely v. Sutton
Decision Date | 04 November 1913 |
Citation | 162 S.W. 755,177 Mo. App. 546 |
Parties | ELY v. SUTTON et al. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.
Action by S. D. Ely against G. V. Sutton and others, begun in justice's court and appealed by plaintiff to the circuit court. From a judgment there for plaintiff, defendants appeal. Affirmed.
A. C. Whitson, of Mexico, for appellants. J. O. Barrow, of Vandalia, and Fry & Rodgers, of Mexico, for respondent.
This is an action in replevin by the mortgagee in a chattel mortgage to recover the possession of certain personal property as for a default of the mortgagors in the payment of the debt thereby secured. The suit originated before a justice of the peace, where, upon trial before a jury, the issues were found in favor of defendants. Thereupon the plaintiff prosecuted an appeal to the circuit court, where the cause was tried de novo before the court and a jury. At the close of all the evidence in the case, the court directed a verdict for the plaintiff. In accordance with the court's peremptory instruction, a verdict was so returned, and judgment was entered accordingly, from which the defendants have prosecuted their appeal to this court.
It appears that in the year 1909, perhaps in September of that year, the plaintiff loaned the defendants the sum of $400, taking their unsecured promissory note therefor. It does not clearly appear when this note matured, but the evidence discloses that some time prior to April 9, 1910, the plaintiff requested the defendants to give security for the payment of their debt. The defendants were engaged in the moving picture business in Vandalia, Mo., and it seems that the money borrowed from the plaintiff was invested in property for conducting and carrying on such business. Upon demand for security for the debt, it was arranged that defendants would give a chattel mortgage upon the property which they owned and were utilizing in the conduct of this business. On April 9, 1910, a note for $419.50 was executed by the defendants, payable one day after the date thereof, and a chattel mortgage of even date therewith was executed by them covering the property above referred to, and securing said note. It seems that the transaction had with respect to the execution of the new note and the mortgage was between plaintiff and his attorney, on the one hand, and defendant G. V. Sutton, on the other. The latter testified that the arrangement that he had with the plaintiff was that a mortgage would be executed securing the debt, and that the time of payment of the latter would be extended one year. He testified that nothing was said about taking a new note, and that he did not know that he had signed a new note; that he went to the office of plaintiff's attorney and read to the latter a list of the chattels to be mortgaged, and that the attorney copied the list into the mortgage, and thereupon he signed the papers, and that his brother did likewise, without either of them inspecting the instruments, though they were able to read; that they signed the papers without reading them relying upon plaintiff's attorney to prepare them in accordance with the agreement and understanding in the premises. As a matter of fact the mortgaged note, instead of being payable one year after date, is a note due one day after date; and in August, 1910, plaintiff instituted this action in replevin, under the mortgage.
I. Learned counsel for appellants insist that the trial court erred in peremptorily directing a verdict for plaintiff. As to the propriety of the court's action in giving the peremptory instruction, under the evidence, we need only to notice the defense sought to be interposed that the execution of the note, payable one day after date, was procured by fraud. And the question before us in this regard is whether there was sufficient evidence of fraud in the transaction to make this question one for the consideration of the jury. It is obvious that the other points raised concerning the dealings between the plaintiff and the defendants are without merit in the case presented by this record. We are to consider whether the testimony adduced on behalf of defendants constituted any evidence of such fraud as the law will recognize as affecting the execution of a written instrument. The gist of the testimony in this regard is to the effect that it was agreed between plaintiff and defendants that the latter would give security for their debt, and that the former would extend the payment thereof one year; that defendants supposed that the papers which they signed carried out this alleged agreement, and that they did not intend to execute a note payable one day after date, but that they did so relying upon plaintiff's attorney to prepare the papers in accordance with the alleged agreement, and did not read what they signed.
Under what circumstances a party will be permitted to contradict the terms of the written instrument which he has signed, and be allowed to show that the contract which it contains was not the real contract between the parties, and that his signature to the writing was procured through fraud, is a question...
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