DAVIS, C.
This suit, an action on a promissory note, originated in Mississippi county, and, on change of venue, was sent to the Cape Girardeau court of common pleas, in which court judgment was rendered in favor of plaintiff for the amount of the note, compound interest, and attorney fees, in the total sum of $3,184.03. Defendant appealed.
The questions here relate wholly to the sufficiency of defendant's answer. Defendant filed his second amended answer to plaintiff's petition. Plaintiff filed a general demurrer to the said answer, on the ground that the facts, stated therein, did not constitute a defense. The trial court sustained the demurrer, and, as defendant refused to plead further, after hearing plaintiff's formal proof, it entered judgment for plaintiff in the amount stated above.
Plaintiff's petition is as follows:
"Plaintiff stated that it is a corporation, duly organized under the banking laws of the United States for the purpose of doing a general banking business in the city of Cape Girardeau, Mo.; that on February 23, 1921, defendant, by his negotiable promissory note of that date, by him duly executed in the city of Cape Girardeau, Mo., promised, for value received, to pay to the Security State Bank of Cape Girardeau, a corporation duly organized under the laws of the state of Missouri, or order, 10 months after date, $2,396.40, with compound interest thereon from date at the rate of 8 per cent. per annum, and further
agreed that if payment was not made at maturity and said note was placed in the hands of an attorney for collection, defendant would pay all costs and attorney's fees; that thereafter the Security State Bank duly indorsed the said note in writing across the back thereof and delivered the same to the plaintiff for value, whereby plaintiff became the owner of said note and entitled to payment of the amount mentioned therein, said note being herewith filed, marked `Exhibit A,' and made a part hereof; that said note has long since matured and become due and payable, but that no part thereof has ever been paid.
"Wherefore, plaintiff, as owner of said note, prays judgment for said sum of $2,395.40, together with 8 per cent. compound interest thereon from date, and together with the further sum of 10 per cent. attorney's fee thereon (which is a reasonable fee for the legal services actually rendered since placing the said note in the hands of an attorney for collection since maturity), and for costs of suit."
Defendant's second amended answer reads:
"Now comes the defendant, James W. Johnson, and by leave of court first had and obtained, filed this his second amended answer, and for such answer to plaintiff's petition admits the execution of the note sued on, but denies generally each and every other allegation in plaintiff's petition contained.
"Further answering, defendant says that the note sued on by plaintiff was executed and delivered for the following consideration, to wit, that in December, 1920, the defendant was the owner of a large tract of land, and that for about 900 acres thereof he was indebted in the sum of about $50,000; that one W. T. Street came to see defendant and represented to defendant that he could and would procure for defendant a loan of $50,000 on said land if defendant would take out a $20,000 policy of life insurance; that at the time said W. T. Street and the Security State Bank of Cape Girardeau, Mo., were acting together and sharing in the profits of the insurance business conducted by the said W. T. Street; that the said defendant, being in danger of losing his said land on account of said indebtedness and relying upon the statement of said Street that he could and would procure for defendant a loan whereby defendant's land could be saved to him, agreed to take said insurance on the sole condition that such loan be obtained, and executed to said W. T. Street his note with the express understanding and agreement that said note was to be of no effect and was never to be presented for payment until and unless the said loan for $50,000 on the land of said defendant should be procured; that said note was not executed and delivered until the 21st day of January, 1921, on which day, and simultaneously with the delivery of said note, said W. T. Street gave to defendant a memorandum in writing showing the condition and consideration on which said note was executed and delivered, which said memorandum is in words and figures as follows, to wit:
"`January 21, 1921.
"`I hereby certify that a note given me in settlement of premium on $20,000.00 Ins, and signed by J. W. Johnson shall not be presented for payment unless loan is granted which in now in process of negotiation.
"`W. T. Street.'
"Defendant further states that thereafter, on or about the 23d day of February, 1921, when the aforesaid note became due, said W. T. Street having failed to procure said loan and acting in concert with said Security State Bank and as agent of said Security State Bank, as well as for himself, or with the knowledge and consent of said bank and its officers, was sent to defendant by said Security State Bank with the note in plaintiff's petition described, and in order to induce and persuade defendant to sign the same said Street represented to defendant that said Street and the Security State Bank had made arrangements whereby the loan of $50,000 on 900 acres of defendant's land would be sure to be made by said Security State Bank or otherwise if defendant would execute the note sued on, and that if for any reason said loan was not obtained, said note was to be null and void and was never to be presented to defendant for payment.
"Defendant says that he executed the note sued on relying wholly upon the representations and agreements made by said Street and said Security State Bank and solely in consideration of the agreement that said Street and said Security State Bank would make or procure for defendant a loan of $50,000 on 900 acres of defendant's land, but defendant says that said consideration has wholly failed; that said W. T. Street and said Security State Bank have wholly failed, neglected, and refused either to make said loan to defendant or procure a loan for him, and that by reason of suck negligent failure and refusal to procure said loan, the defendant has lost his said land, and that by reason of the premises the consideration for said note has wholly failed, that said note sued on was made to take up the note so executed to W. T. Street as aforesaid and upon the representations and for the consideration aforesaid, all of which was known to said Security State Bank and its officers in charge thereof.
"Defendant says that all the representations and statements made by said W. T. Street for and, in behalf of himself and as agent for said Security State Bank, or with the knowledge and consent of said Security State Bank as aforesaid, were false and fraudulent and were known at the time by said Street and said Security State Bank to be false and...
