Frissell v. Mayer
| Decision Date | 27 February 1883 |
| Parties | WILLARD FRISSELL, Respondent, v. SIMON MAYER, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, THAYER, J.
Affirmed.
J. B. WOODWARD, for the appellant: Parol evidence, showing the instruments never had any legal existence, either by reason of fraud or want of consideration, is admissible.--1 Greenl. on Ev., sect. 284; Perry v. Central S. R. Co., 5 Coldw. 138; Brick v. Brick, 98 U. S. 516; Black v. Shreve, 2 Bas. 455; Grierson v. Mason, 60 N. Y. 394. To show, as desired by this plea, the character of the possession of the written instrument sued on, does not change, vary, or contradict the writing itself, and in view of the independent facts desired to be shown, this effort of the respondent is a fraud upon the rights of appellant.-- Jones v. Jeffries, 17 Mo. 79; Carter v. McClintock, 29 Mo. 465; Ennerwalt v. Kohn, 98 Pa. St. 369. The notes, being in the hands of the original payee, as between these parties, rank no higher in point of obligation than a simple contract, and in this respect are in no way to be distinguished from it except on their face. They import consideration, but this may be explained.-- Gahn v. Numcrurz, 11 Wend. 312. A party may have relief against an express deed, as where it is shown to have been a mortgage, or where the representations to purchaser were fraudulent.-- Monell v. Colden, 13 Johns. 395; Russell v. Rogers, 15 Wend. 351, 357; Johnson v. Miles, 14 Wend. 199.
CHARLES M. NAPTON and DAVID MURPHY, for the respondent: Parol evidence is never admissible for the purpose of discharging the parties to a written contract.-- Thompson v. Davenport, 2 Smith's Ld. Cas. 371; Mossman v. Holcher, 49 Mo. 87; Jones v. Jeffries, 17 Mo. 577; Blackburn v. Harrison, 39 Mo. 303; Inge v. Hance, 29 Mo. 399; Cuthbert v. Bowie, 10 Ala. 163; Ferris v. Ludlow, 7 Ind. 517.
This was an action upon five several negotiable promissory notes, all made by defendant to the order of plaintiff.
The answer, after a general denial, sets up that the notes were executed under the following circumstances: About February 1, 1871, plaintiff negotiated with Einstein and Mandel, who were then co-partners, for the sale by him and purchase by them of certain real estate; and, on the same day, plaintiff sold this real estate to Einstein and Mandel for $4,000. The purchasers paid $1,000 cash. It was agreed between plaintiff and these purchasers, for their mutual convenience, that plaintiff should not convey the property directly to them, but to a “joint agent and trustee,” who should appear as grantee in the deed and who should make and deliver in his own name the notes for the deferred payments and the deed of trust to secure these notes; that defendant was selected as the “joint agent and trustee.” The deed was made to him in accordance with this agreement, and he executed and delivered to plaintiff one note for $3,000, and also ten interest notes for $270 each, being some of the notes sued on herein, and a deed of trust to secure the notes upon the property conveyed to him. It was further agreed between plaintiff and Einstein and Mandel, at the time of the sale and subsequently thereto, that Einstein and Mandel would pay all of said notes at maturity; and, in pursuance of this agreement, plaintiff collected several of the interest notes as they matured. Defendant undertook said agency and trust at the request of plaintiff and Einstein and Mandel, and upon their joint representation to him that he was not to be held personally responsible for his acts in the premises so done and to be done at their instance and request; and all his acts in the premises were done without any consideration moving to him from either of said parties. It was expressly agreed between plaintiff, Einstein, and Mandel, and defendant, that defendant was simply their “joint agent or trustee,” and not responsible to either of them for either the sale or purchase price of said real estate or the payment of any of the notes growing out of the transaction.
On the trial, plaintiff introduced the principal note and four...
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Guess v. Russell Bros. Clothing Co.
...as tending to vary the terms of the writing. James T. Hair Co. v. Walmsley, 32 Mo. App. 115; Pearson v. Carson, 69 Mo. 550; Frissell v. Mayer, 13 Mo. App. 331. It is, however, competent to show whether or not the goods were actually shipped within a reasonable Defendant insists that because......