First National Bank And Trust Company v. Limpp

• Decision Date: 06 December 1926
• Citation: 288 S.W. 957,221 Mo.App. 951
• Parties: FIRST NATIONAL BANK AND TRUST COMPANY, RESPONDENT, v. STRAUSIE V. LIMPP, APPELLANT. [*]
• Court: Kansas Court of Appeals

288 S.W. 957

221 Mo.App. 951

FIRST NATIONAL BANK AND TRUST COMPANY, RESPONDENT, v. STRAUSIE V. LIMPP, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

December 6, 1926

Appeal from the Circuit Court of Buchanan County.--Hon. L. A Vories, Judge.

Judgment affirmed.

E. G Robison and J. J. Robison for respondent.

Mytton & Parkinson for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is an action on a promissory note. At the conclusion of the testimony the court directed a verdict for plaintiff, resulting in the jury finding for plaintiff in the sum of $ 6563. Defendant has appealed.

The facts show that defendant, Strausie V. Limpp, and one Wilbur R. Limpp, were and are husband and wife; that sometime in the spring or summer of 1922 defendant's husband owed plaintiff and the Citizens National Bank of King City equal sums of money represented by his notes to the respective banks. Defendant did not owe or was she obligated to pay any part of this indebtedness. The court sustained plaintiff's objection to the following offer of proof made by the defendant, which forms the basis of the defense to this action:

"Defendant offers to prove by the witness on the stand and by other witnesses that the note sued upon is one of two notes aggregating $ 10,400, secured by a deed of trust upon lands owned by Wilbur R. Limpp and that both of said notes were secured by one and the same deed of trust; that these two notes were renewal notes of a series of renewal notes representing indebtedness which originated in the spring of 1922.

"That at that time Strausie Limpp was the wife of Wilbur R. Limpp; that at that time he owed the Citizens State Bank and the First National Bank & Trust Company of King City, Missouri, the money which is the foundation of the claim on these two notes; that Strausie V. Limpp did not owe any part of said obligations.

"That at said time the First National Bank of King City, acting through Frank McKinney, and the Citizens National Bank of King City, Missouri, acting through Frank McKinney, requested Strausie V. Limpp, the defendant in this case, to execute the notes to the respective banks, including the note sued on herein and introduced in evidence, which is one of the series of renewal notes already mentioned, and at that time informed her that as the wife of Wilbur R. Limpp she had an interest in the real estate standing in his name; that she at first refused to sign the notes but finally consented to and did execute the notes upon the statement made by him and for the consideration of the agreement made by the First National Bank & Trust Company of King City, Missouri, and the Citizens National Bank of King City, Missouri, through Frank McKinney, who was representing both banks, that in the event of her signing the notes and mortgage securing the same, that in the event of the land mentioned in said deed of trust--which was land owned by Wilbur R. Limpp and the title of which stood in his name--ever being exposed for sale under the provisions of prior deeds of trust or a prior deed of trust on the same land, which the said McKinney informed her were at that time in force and effect, or if said land should be exposed for sale under the terms of the deed of trust securing the two notes herein mentioned which she was at that time being asked to execute, or under any note or mortgage securing the same which might be given in renewal of the notes and mortgage which she was being asked to execute at that time, that said banks and each of them would agree that one or both of said banks would appear at the sale and bid a sum equal to the entire indebtedness existing against said land.

"Defendant further offers to show that subsequent to the maturity of the note sued on the land described in the deed of trust executed by her at that time, or a deed of trust securing renewal notes for the identical indebtedness, the land was exposed for sale, and that neither of these banks nor any one for them appeared and bid upon the property, and that said land was sold for a sum less than the amount of the prior mortgage existing against said land.

"That this agreement was a part of the consideration of the notes, and that it was further agreed that in the event of their failure to appear and bid an amount equal to the amount of the aggregate indebtedness represented by loans against the land, that as liquidated damages for the breach of the agreement they or one of them would cancel and surrender the notes or renewal notes that might be outstanding and deliver them to the defendant and her husband."

Plaintiff's objection to this offer was based upon the ground that such evidence would tend to vary the terms of the note thus violating the parol evidence rule. And, further, on the ground that the offer of proof did not show that Frank McKinney was acting in the scope of his authority as an officer of the banks. Defendant contends the parol evidence rule is not applicable to the defense offered in this case because such rule does not extend so far as to preclude the admission of extrinsic evidence to show a prior or contemporaneous collateral parol agreement consistent with the terms of the written contract. Defendant's view of the law is correct. It is merely a question as to whether this rule of law is applicable to the defense sought to be made in this case. While an independent contemporaneous parol agreement touching the same subject-matter may under some circumstances be admitted in evidence, such an agreement is not admissible if it tends to vary or contradict the terms of a written contract made at the same time. [Threshing Machine Co. v. Matthews, 188 Mo.App. 429, 435, 436, 174 S.W. 198.] It has been held that parol evidence is not admissible for the purposes of proving that a promissory note, absolute on its face, was to be paid only upon the happening of some contingency. [...