Gideon v. Teed

• Decision Date: 02 July 1924
• Parties: FLORA DULIN BROWN GIDEON, Respondent, v. MARY F. TEED, Appellant
• Court: Missouri Court of Appeals

264 S.W. 70

216 Mo.App. 315

FLORA DULIN BROWN GIDEON, Respondent, v. MARY F. TEED, Appellant

Court of Appeals of Missouri, Springfield

July 2, 1924

Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Hamlin & Hamlin for appellant.

(1) The court should have submitted to the jury the question whether the money given the defendant by the plaintiff at the bank was a payment of indebtedness due from her to the defendant or a loan. This case is an exception to the rule, that where one signs an instrument he must read it, if he can read because a trick was resorted to by plaintiff for the purpose of preventing defendant from reading the paper. Wells v. Adams, 88 Mo.App. 215. (2) Courts will not turn a deaf ear to one of the contracting parties who seeks to get rid of a contract, when the other party is charged with fraud in reading the contract to him, or in stating its nature, or terms, especially where there is a known trust or confidence reposed in the person making the representation, and a relationship justifying such trust. Nicol v. Young, 68 Mo.App. 448, and cases cited. (3) The defendant reposed confidence in the plaintiff, a confidential relationship existed between them, therefore the representation of the plaintiff that the paper was a receipt was a concealment and a breach of confidence, and the judgment should be reversed. Lee v. Lee, 258 Mo. 613.

H. D. Durst and G. G. Lydy for respondent.

(1) The court committed no error in giving the peremptory instruction. The defendant admits she signed the note, that she can read and write and that she received $ 125 from plaintiff at the time she signed the note. The note is in the usual form and recites an unconditional promise to pay said amount for value received without defalcation or discount. Section 846, R. S. 1919, fixes the liability of defendant as follows: "The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee, etc." (2) The evidence of defendant that she thought the note was a "receipt" and that the money was to apply on an antecedent debt already paid and barred by limitation, is not admissible, and is no defense because defendant cannot by parol evidence contradict her written contract to pay, and cannot thus prove a different contemporaneous agreement. Woodson, Ex'r v. Ritchie, 36 Mo.App. 506; Shaw v. Shaw, 50 Me. 94, 79 Am. Dec. 605; Billings v. Billings, 10 Cush. (Mass.) 178; Dickson v. Harris (Iowa), 13 N.W. 335; Simonton v. Shaw, 246 F. 683. (3) The note shows on its face that it was given for value received and imports a consideration. The admission that defendant received the sum of money for which the note was given, at the time it was executed, is conclusive evidence of a valid consideration and eliminates from the case the plea of fraud. It is the duty of the court to direct a verdict in such cases. Sec. 2160, R. S. 1919; Bross v. Stancliff, 211 Mo.App. 342, 240 S.W. 1091; American Ins. Co. v. Smith, 73 Mo. 368, l. c. 370. (4) There is no question of a fiduciary relationship in this case. The mere fact that the payee is the daughter of the maker of the note is not evidence of such a relationship. Lee v. Lee, 258 Mo. 613.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.--

The plaintiff, a married woman, is the daughter of the defendant. She instituted this suit in the justice court upon a promissory note dated at Springfield, October 2, 1914, due two years from date, payable at the Bank of Springfield, with interest at eight per cent per annum from date, payable semi-annually, signed Mary F. Lewton. Mary F. Lewton has since married Teed, and was sued under the latter name. The note is regular on its face, signed by the defendant, and therefore purports a consideration, it being made in the sum of $ 125.

After the evidence on the part of the plaintiff and defendant had been offered, the trial court directed a verdict for the plaintiff, and this appeal is taken from the judgment rendered thereon.

The contention made by the defendant, appellant here, is that the note was procured by fraud and deception on the part of her daughter, and that the signature to the paper which has turned out to be a promissory note was procured on the statement that it was a receipt for $ 125 she was signing. As the judgment was the result of a direct verdict for plaintiff, we must give every inference to defendant's testimony that can logically be drawn therefrom in her favor, and determine then whether she was entitled to go to the jury on the case she attempted to make. The defendant's story, in short, is as follows:

That the plaintiff is her daughter, a married woman, who had lived with her from time to time, and that prior to the demand of payment of this note the relations between them were good. She testified that years before the date the note bears she had loaned to her daughter, the plaintiff, the sum of $ 261, without taking any note or memorandum in writing, with the understanding that it was to be paid back in monthly installments of $ 5 each; that payments were made amounting to $ 126. She produced a memorandum book showing the payments and dates of same, and testified that there was a balance still due on the original indebtedness of about $ 147. It was also shown by the defendant, and admitted by the plaintiff, that on another occasion the mother had loaned the daughter $ 100 to help purchase a home, which was loaned without any note or written memorandum, and that $ 100 was repaid.

The plaintiff contends that all of the money she had ever borrowed from her mother had been repaid, and that at the time the note was given her mother asked her for a loan of $ 125 and that she, the plaintiff, in company with the defendant went to a bank in Springfield, procured from the bank $ 125 and delivered it to the defendant, and at that same time and place she drew the note sued upon and that her mother signed it knowing that it was a note for the $ 125. The defendant testified that at the time the money was turned over to her in the bank that she had asked her daughter for $ 125, and that the daughter went to the bank, just as she, the plaintiff, testified, to procure the money and turned it over to her and that the same was not a loan made to the defendant but was merely a payment of the balance due on the money which she claimed to have loaned to her daughter, and which had never been repaid. And the defendant testified that when she received this money from her daughter in the bank the daughter stated that in case she, the mother, should die, a receipt should be given that this money had been repaid and that she offered her this paper to sign and told her that it was a receipt. The defendant testified that she had full confidence in her daughter and relied upon her word, and that she signed the paper having been told by her daughter that it was a receipt, and in fact it afterwards turned out to be the note sued on in this case.

The trial court by its action in directing a verdict held, as a matter of law, that the defendant's own testimony precluded her from making this defense and that the plaintiff was entitled to a judgment, as a matter of law.

In considering the law governing this transaction we may state in the beginning that the law of contracts governs it independently of the rules laid down by statute or decision concerning negotiable instruments. The suit is between the original parties, the note never having been negotiated.

The respondent contends that inasmuch as it is shown that the mother could read and write, and signed this paper at the very time and place that the money which she received was paid to her by the plaintiff, that she will not then be permitted to dispute the validity of the note or to offer any evidence which would change, alter or make nugatory the provisions of the contract. The appellant, on the other hand, contends that the note was procured by fraud and deceit; that it was signed on the statement made by the plaintiff that the paper defendant was signing was a receipt, and that under the circumstances, considering the negotiations, relations and circumstances surrounding these parties she, the mother, would not be held to the same degree of care which would be required had she been dealing with an entire stranger.

The law seems to be well settled in cases cited by respondent that when one who is in full possession of his faculties and is capable of reading a contract or paper put before him to sign, will be held to the contract as written and will not be permitted to dispute its validity. Cases upholding this proposition are: Woodson, Executor, v. Ritchie, 36 Mo.App. 506; Bross v. Stancliff, 211 Mo.App. 342 240 S.W. 1091; American Ins. Co. v. Smith, 73 Mo. 368; Deming Investment Co. v. Wasson, 192 S.W. 764. All of the cases which we have examined hold that before one can...