First Nat'l Bank of Sedalia v. Kruse

• Decision Date: 04 May 1885
• Parties: FIRST NATIONAL BANK OF SEDALIA, Respondent, v. CORD KRUSE, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 511

FIRST NATIONAL BANK OF SEDALIA, Respondent,

v.CORD KRUSE, Appellant.

Kansas City Court of Appeals, Missouri.

May 4, 1885.

The court affirms the judgment, because of failure of appellants to file brief or assignment of errors.

APPEAL from Pettis Circuit Court, Hon. JOHN P. STROTHER, Judge.

Affirmed.

GEO. P. B. JACKSON, for respondent.

I. The appellant claims there was a failure of consideration, and sets up the failure of a contemporaneous collateral agreement. The breach of this collateral agreement, if true, is no defence to the note. The collateral agreement could not be shown by parol, nor its breach set up in law.-- Bricher v. Payne, 7 Mo. 462; Atwood v. Lewis, 6 Mo. 392; Walker v. Engler, 30 Mo. 130; Kenshaw v. Dutten, 59 Mo. 139; Cress v. Blodget, 64 Mo. 449.

II. It was his own default in the payment of his note, that occasioned the breach of the collateral agreement, so that even if he had offered and been permitted to show the agreement, he should not have been permitted to avail himself of the breach of it, as a defence to an action on the note.-- Clark v. Condit, 11 Mo. 79.

III. Outside of the question of the collateral agreement, a partial failure of title to the land sold will not constitute a defence to the note; there the party must seek his remedy on the covenants of the deed.-- Chase v. Weston, 12 N. Y. 413; Smith v. Sinclair, 15 Mass. 171; Talmadge v. Wallis, 25 Wend. 107.

IV. When a party takes land under a quit claim deed, it is no defence to the note given for the purchase money, that the vendor had no title. The facts of this case place the appellant in the same attitude.-- Glasscock v. Rand, 14 Mo. 551; Carter v. Harber, 18 Mo. 204.

V. But there is no defence appearing in the record.

No brief on file for appellant.

Opinion by ELLISON, J.

The appellant in this cause having failed to file brief or assignment of errors as required by law, the judgment of the court below is affirmed.

The other judges concur.