Farmers' Bank of Wickliffe v. Wickliffe

• Decision Date: 03 February 1909
• Citation: 116 S.W. 249,131 Ky. 787
• Parties: FARMERS' BANK OF WICKLIFFE v. WICKLIFFE.
• Court: Kentucky Court of Appeals

116 S.W. 249

131 Ky. 787

FARMERS' BANK OF WICKLIFFE v. WICKLIFFE.

Court of Appeals of Kentucky.

February 3, 1909

Appeal from Circuit Court, Ballard County.

"To be officially reported."

Action by the Farmers' Bank of Wickliffe against Charles Wickliffe. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J. M Nickols & Son, for appellant.

J. B Wickliffe, for appellee.

HOBSON J.

The Farmers' Bank of Wickliffe brought this suit against Charles Wickliffe to recover of him the amount of four notes executed by O. P. Beck and him to the bank; the first being dated July 17, 1905, for $3,000, due in 12 months; the second October 5, 1905, for $3,369.60, due in 12 months; the third February 23, 1906, for $4,000, due in 6 months; and the fourth dated May 31, 1906, for $2,300, due in 3 months. The notes were all evidently written upon the same form, and, except as to amount and dates, are in the same words. The first note reads as follows: "$3,000.00 Wickliffe, Ky. July 17th, 1905. Twelve months after date we jointly and severally promise to pay to the order of Farmers' Bank of Wickliffe three thousand and no-100 dollars, negotiable and payable at the Farmers' Bank of Wickliffe, Wickliffe, Kentucky, for value received with interest after maturity at six per cent. per annum. O. P. Beck. Charles Wickliffe." Wickliffe by answer pleaded that he signed the notes at the bank's request and for its use, with the agreement that Beck was to execute to him a mortgage upon certain property, and that the bank would look to the mortgage for the debt, and not hold him responsible in any way. He also pleaded that the cashier on March 9, 1907, in consideration of the interest being paid in advance by Beck, gave time on all the notes for a year without his knowledge or consent, and this he relies on as releasing him thereon. Issue was taken upon the allegations of the answer, and upon a trial of the case before a jury there was a verdict and judgment for the defendant. The bank appeals.

Wickliffe testified on the trial: That one day Beck came to him, asking him to sign a note. That he then went to see Burton, the cashier, and said to him: "Did you send Beck to me to sign a note and take a mortgage?" He said: "Yes; I did. We cannot hold a mortgage, and I told him to go and get you to hold it for us." He then said to Burton: "Now, that's understood. I am holding the mortgage for the bank. It is your affair, and not mine. I am not responsible." Burton replied: "All right, go ahead." And he then signed the note. When the second note was brought to him, he thought it was a renewal of the first note, and paid no attention. The next note he thought was a renewal, and when the fourth was presented he did not sign it, and went to see Burton and told him that $4,000 was enough on the property and advised him to get additional security. Beck refused to give additional security, and he then said to Burton: "That's up to you. It is your transaction. I have nothing to do with it. Whatever you say about it you can do." Burton said: "Go ahead, and sign it then, it's all right." And he then signed the last note. Wickliffe also testified that Burton had never demanded payment of him of the notes, although he saw him frequently and passed the bank every day. Burton denied in toto the testimony of Wickliffe; and it was shown by the proof that there was a mortgage executed by Beck to Wickliffe of date April 4, 1905, which begins with these words: "Know all men by these presents that O. P. Beck of Ballard county and state of Kentucky have this day become indebted to Farmers' Bank with Charles Wickliffe as security of the county and state aforesaid in the sum of $2,000 evidenced by my promissory note of even date herewith, due and payable on the 4th day of October, 1905," etc. It is also shown that on July 17th Beck and wife executed to Wickliffe a second mortgage, which begins with these words: "Know all men by these presents, that Charles Wickliffe, of Ballard county, and state of Kentucky, has this day become bound as my surety to the Farmers' Bank of Wickliffe, of county and state aforesaid, in the sum of $3,000.00, evidenced by our promissory note of even date herewith, due and payable on the 17th day of July, 1906, and bearing interest at ___ per cent. per annum from date until paid." Wickliffe testified on the trial that the first mortgage was written by a young lady at his request, but that he did not know anything about the second mortgage. The second mortgage was in the handwriting of Wickliffe's brother, who is an attorney at Wickliffe, but he testified that he did not remember under what circumstances he had written it. Burton testified, and this is also shown by the books of the bank, that these transactions began on April 3, 1905, when Beck and Wickliffe then first executed a note for $2,080, and finding that this note was not as much as Beck wanted on the next day executed a note for $3,120 due in six months; and, when this note matured, the second note sued on was executed in renewal of it. The other three notes were for loans made at the time of their execution, Beck being credited by the bank with the proceeds, which went in part to cover his overdraft in the bank, and were in part afterwards used by him. The directors took no part in the management of the bank, and left everything to Burton, who was practically its managing agent.

On this evidence the question is: Can the evidence offered by the defendant be received to contradict the written instruments themselves? He pleaded that the writings did not conform to the real contract by reason of fraud or mistake; but there is an entire absence of any evidence of fraud or...