Golden City Banking Co. v. Morrow

• Decision Date: 23 November 1914
• Parties: GOLDEN CITY BANKING COMPANY, Respondent, v. ETHEL MORROW et al., Appellants
• Court: Missouri Court of Appeals

170 S.W. 448

184 Mo.App. 515

GOLDEN CITY BANKING COMPANY, Respondent, v. ETHEL MORROW et al., Appellants

Court of Appeals of Missouri, Springfield

November 23, 1914

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

AFFIRMED.

Roscoe Patterson and R. A. Mooneyham for appellant.

(1) False or fraudulent statement made to the surety at the time of the execution of the contract, or during the negotiations leading up to it, is sufficient ground for annulling it. Benton County Savings Bank v. Boddicker, 105 Iowa ___; Same case, 75 N.W. 632, 548; Same case, 67, An. St. 310; Same case, 45, 2 R. A. 321; Trammell v. Swan, 25 Texas, 473; Cooper v. Joce, 1 De F. and J. 240; Same case, 62 Eng. Chan. 184; Same case, 45 Eng. Reprint, 350. (2) Parol evidence is admissible to show that a mortgage or bill was procured by fraud. 2 Ency. Evid., 500; Wilson v Miller, 72 Ill. 616; Hamon v. Gooddale, 38 Ill.App. 365; White v. Smith, 98 P. 766; Savage v. Humphreys, 118 S.W. 893; Baker v. Mining Co., 65 S.E. 656; Hodgkins v. Junham, 193, 531; Keyser v. Hinkle, 127 Mo.App. 62. (3) A surety is not liable if the representations made to him are untrue although honestly made. Blaney v. Rogers, 174 Mass 277; Same case, 54 N.E. 561; Harter Co. v. Pierson, 26 Ohio Cir. Ct. 601; Brewing Co. v. Hevey, 13 Ontario, 64.

Van Pool & Martin and H. W. Timmonds for respondent.

(1) Every negotiable instrument is deemed to have been issued for a valuable consideration and every person whose signature appears thereon to have become a party thereto for value. Secs. 2774, 9995, R. S. 1909. (2) Parol evidence tending to prove that the cashier told the maker of the note that the bank would not look to her for payment, is inadmissible to vary the liability of the maker of a written contract. Bank v. Forsyth, 28 L.R.A. (N. S.), 503; Crim v. Crim, 162 Mo. 553; Kessler v. Clayes, 147 Mo.App. 98. (3) To overturn a written contract on the ground that same was procured by fraudulent representations, the rule is, "That the court should be satisfied by the clearest evidence of such fraudulent representations, and that they were made under such circumstances as show that the contract was founded upon them." Bailey v. Smock, 61 Mo. 213; Bank v. Dowler, 167 Mo.App. 373. (4) In order to recover for a fraudulent representation, the aggrieved party must show that she would have acted otherwise had she known the falsity of the representation. Wann v. Sullivan, 210 Mo. 487.

ROBERTSON, P. J. Farrington and Sturgis, JJ., concur.

OPINION

ROBERTSON, P. J.

This is an action on a promissory note dated May 14, 1912, signed by defendant and another. The defendant's answer, being unverified, admits the execution of the note, but it undertakes to allege fraud in the procurement of her signature thereto and absence of consideration to her for signing. Upon a jury trial the court directed a verdict for the plaintiff for the face value of the note. Judgment was entered thereon and defendant has appealed.

As we understand appellant's brief, there is but one question urged here, which is that the court erred in directing the verdict because her testimony tended to prove that her signature was procured by fraud. The testimony is to the effect that a defaulting cashier of plaintiff bank and his wife, in company with the man who succeeded him as such cashier, went to defendant's home one evening in 1909 and requested her to sign a note with the defaulting cashier's wife. This she did, of which the note in suit is a renewal, but just what was said to her before doing so is difficult to even surmise from the testimony. The most that can be said of it, and more than we think is really justified, is that she was induced by these parties including the then cashier of plaintiff's bank, by a promise, that the deposed cashier's wife would give her a note signed by her and a chattel mortgage on her household furniture and piano to indemnify her, which was done shortly thereafter, and which all the parties there present assured her was ample to protect her, and we may concede, told her that the property was free of liens. The defendant testified that the furniture was sold on execution, whether by reason of a levy having been made before she got her mortgage or by reason of her failure to file or record her mortgage in the office of the recorder of deeds we cannot determine. The chattel mortgage, a writ of attachment, a judgment and a special execution were offered in...