Farmers' State Bank v. Sloop

• Decision Date: 28 January 1918
• Docket Number: No. 12678.,12678.
• Citation: 200 S.W. 304
• Parties: FARMERS' STATE BANK OF GREENTOP v. SLOOP et al.
• Court: Missouri Court of Appeals

200 S.W. 304

FARMERS' STATE BANK OF GREENTOP v. SLOOP et al.

No. 12678.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Schuyler County; N. M. Pettingill, Judge.

"Not to be officially published."

Suit by the Farmers' State Bank of Greentop, Mo., against John Sloop and J. W. Kaster. From a judgment for defendants, plaintiff appeals. Judgment reversed and cause remanded, with directions.

Higbee & Mills, of Kirksville, for appellant. W. M. Saxbury, of Queen City, and Fogle & Fogle, of Lancaster, for respondents.

TRIMBLE, J.

This is a suit upon a promissory note in words and figures as follows:

                            "Greentop, Mo., July 26, 1915
                

"Ninety days after date, for value received, we, or either of us, promise to pay to the order of the Farmers' State Bank of Greentop. Missouri, twenty-four hundred forty-six and 19-100 dollars, with interest at the rate of 8 per cent. per annum from date, and if not paid when due to draw 8 per cent. interest per annum from maturity, and if the interest be not paid annually, to become as principal and bear the same rate of interest. The signers and indorsers each waive demand, notice and protest of this note, and further agree to pay all cost and attorney's fee should this note be collected by law, including all expenses. Payable at the Farmers' State Bank of Greentop, Mo.

                                          "John Sloop
                                  "G. & C. for N. L. Kaster
                                          "John Sloop
                                          "J. W. Kaster
                

"[25c Rev. Stamp.] [25c Rev. Stamp.]"

Defendants' answer admitted that they executed and delivered said note along with another one for $4,000, but sets up certain facts, and asserts that there was an alleged oral agreement between plaintiff (through its cashier) and themselves by virtue of the nonperformance of which, on plaintiff's part, the notes are unenforceable and void.

The facts referred to above were that on November 5, 1912, Nathan L. Kaster executed his negotiable promissory note for $2,000 to the plaintiff bank due in six months bearing 7 per cent. compound interest from date; that on June 30, 1913, the probate court of Schuyler county, Mo., duly adjudged said Kaster to be of unsound mind and incapable of managing his affairs, and appointed John L. Sloop (one of the defendants herein) as his guardian, who thereupon duly qualified; that on the 8th of December, 1914, the circuit court of said county rendered a decree granting a divorce to the wife of said Kaster and awarding her a judgment for $4,000 alimony in gross against him and his said guardian together with costs; that an execution was issued on said judgment, and was duly levied upon said Kaster's real estate, and the same was advertised for sale, and was about to be sold, on July 26, 1915. The day before the sale was to come off the defendant J. W. Kaster, and three others, related by blood and marriage to Nathan L. Kaster, desiring to save his land from sale, applied to Young, plaintiff's cashier, for money with which to pay off said judgment. They agreed to meet next day at Lancaster, the county seat where the execution sale was to be held. The defendants, with four others, Ditmars, Johnson, Dufur, and Smith, met the cashier at Lancaster, and, before the sale took place, the defendants, with Dufur, Johnson, and Smith, executed a note for $4,000, due in 90 days, to the plaintiff bank, and the defendants executed the note in suit. The last-named note was to take up the long past due $2,000 note dated November 5, 1912, and the bank surrendered it. For the other note the bank placed $4,000 at the disposal of the parties, and the money was used to satisfy the execution under which Nathan L. Kaster's land was about to be sold. There is no dispute over the foregoing facts. The answer sets them up and the reply admits them.

The oral agreement relied upon by the defendants (but which the reply denied) was that at and prior to the time the said two notes were executed plaintiff, through its cashier, agreed with the makers thereof that it would make a loan to John Sloop as guardian and curator of Nathan L. Kaster of a sufficient sum to cover both of said notes, to be secured by mortgage on 120 acres of Kaster's farm, as soon as an appropriate order for that purpose should be made by the probate court, and that the bank would accept said security and surrender the two notes aforesaid. The answer alleged that an order to borrow said amount and authorizing said security was obtained from the probate court, but that plaintiff refused to make the loan, and refused to surrender the said two promissory notes, by reason of all which facts and allegations said two promissory notes "are wholly inoperative, unenforceable, and void, and the consideration thereof has wholly failed." There was no averment of fraud, accident, or mistake.

The court, over the objections and exceptions of plaintiff presented and saved at every step and in every conceivable way, admitted evidence offered by defendants in support of the alleged oral agreement and the violation thereof, and, in defendants' instructions, submitted the case to the jury in accordance with the theory of defendants' answer. Thereupon the jury found for defendants, and plaintiff appealed.

The question is as to whether the admission of defendants' evidence relating to the alleged oral agreement violates the rule against changing, varying, or contradicting the terms of a written contract which is complete and perfect on its face. The contract sued on is a negotiable promissory note, and, of course, is complete in every way. And there is not, and cannot be, any question...