Farmers' & Merchants' Bank v. Richards

• Decision Date: 08 May 1906
• Citation: 95 S.W. 290,119 Mo. App. 18
• Parties: FARMERS' & MERCHANTS' BANK OF VANDALIA v. RICHARDS.
• Court: Missouri Court of Appeals

95 S.W. 290

119 Mo. App. 18

FARMERS' & MERCHANTS' BANK OF VANDALIA v. RICHARDS.

St. Louis Court of Appeals. Missouri.

May 8, 1906.

Rehearing Denied May 22, 1906.

1. BANKRUPTCY—NEW PROMISE TO PAY NOTE.

Rev. St. 1899, § 3706, providing that parties may agree in writing for the payment of interest, not exceeding 8 per cent. per annum, on money due or to become due upon any contract, does not render an oral promise to pay a note bearing 8 per cent. interest per annum, made after the maker's discharge in bankruptcy, unenforceable.

2. SAME—QUESTION FOR JURY.

Evidence that the maker of a note after his discharge in bankruptcy said repeatedly to the payee "I will pay it" was sufficient to warrant the court in submitting to the jury the question whether or not there was an express promise to pay the note.

3. SAME—PLEADING—DEFECT CURED BY ANSWER.

A petition alleging the execution of a note, that it had not been paid, that defendant had been adjudged a bankrupt, but whether or not he had been discharged plaintiff had no knowledge or belief, and a new promise to pay, if defective in failing to allege the discharge in bankruptcy, the omission was supplied by the answer, which affirmatively alleged that defendant had been discharged.

4. WITNESSES—ADVERSE PARTY — CROSS-EXAMINATION.

Great liberality should be allowed in the cross-examination of an adverse party, where his evidence as to the principal issues is a flat contradiction of that of the opposite party; but under no circumstances should an attorney be permitted to intimidate a witness, or confuse him by a too rapid cross-examination.

5. APPEAL—NECESSITY OF OBJECTION BELOW —VARIANCE.

In an action on a promise to pay a note discharged in bankruptcy, the petition alleged that the promise was for a valuable consideration, and the proof showed only a good consideration —the moral obligation to pay. Held, that the question of variance could not be raised for the first time on appeal.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Farmers' & Merchants' Bank of Vandalia against Thomas Richards. From a judgment denying motions for new trial and in arrest of judgment, defendant appeals. Affirmed.

On February 17, 1900, defendant executed and delivered to plaintiff his promissory note for $325, bearing interest from date at the rate of 8 per cent. per annum. The note, though overdue, has not been paid. After executing the note, the defendant was adjudged a bankrupt, and on February 28, 1901, received his discharge in bankruptcy. The count of the petition on which the case was tried (the second one) alleged, in substance, that after the adjudication in bankruptcy the defendant, "for a valuable consideration, by a new promise then and there made, promised and agreed" to pay the note in full; that as to whether or not defendant had been discharged as a bankrupt plaintiff had no knowledge or information. The substance of the answer to this count was a plea of discharge in bankruptcy and a denial of the alleged new promise. On the issues thus made the jury returned a verdict for plaintiff for $463.65. Unsuccessful motions for new trial and in arrest of judgment were filed, and defendant appealed.

The plaintiff's evidence tends to show that on January 25, 1903, defendant went into plaintiff bank for the purpose of cashing a draft, and the cashier then and there called his attention to the $325 note, and asked him to renew it. Defendant said, "No; I will pay it." The cashier testified as follows: "I offered him a renewal note, dividing it, making half of it payable in six months and half in twelve months. He says, `No; I will pay it.' I would judge we were engaged in conversation some 30 minutes. He continued to say he would pay it. His reason for not signing a new note was that he would have to give new notes to other parties. I called his particular attention to this note sued on, or $325 note. The note which is dated February 17, 1900, is the note that he said he would pay." On cross-examination witness testified: "I asked him what he intended to do with the note. He said he would pay it. I asked him what he could do for us on that note of $325. He says, `I am going to pay it.' I asked him to make me a couple of notes, dividing it half and half—one six months and one twelve months. He says, `No; I will pay it.' I told him all right. I considered at the time he would pay it from six to twelve months. He didn't give me any exact time about paying it. I had a conversation with him about two months afterwards. I talked to him about the note, and he said he was going to pay it. I asked him if he didn't consider it an accommodation to let him have the money. I spoke to him about renewing the note, and he said he would pay it. He came right out and said `I will.'"

W. L. Wright, a witness for plaintiff, testified as follows: "I heard Mr. Richards say, `Fred, I will pay the note, but I cannot renew it now. If I was to renew this note I would have to give other parties a new note, and I couldn't do that.' They were engaged in conversation some little time; it was less than an hour."

Both in his examination in chief and on cross-examination defendant distinctly and emphatically denied that he promised to pay the note or any part of it at any time after his discharge in bankruptcy.

Geo. Robertson, for appellant. P. H. Cullen and J. S. Gatson, for respondent.

BLAND, P. J. (after stating the facts).

1. By the discharge in bankruptcy the note was not paid, but the defendant's liability thereon was discharged, and the action is not on the note but on the new promise; the discharged debt being the consideration therefor. Fleming v. Lullman, 11 Mo. App. 104. Section 3706, Rev. St. 1899, provides: "Parties may agree, in writing, for the payment of interest, not exceeding eight per cent. per annum, on money due or to become due upon any contract." The preceding section provides that, where no rate of...