Jobe v. Buck

• Decision Date: 12 September 1930
• Citation: 31 S.W.2d 98,224 Mo.App. 621
• Parties: NELLE M. JOBE, ADMINISTRATRIX OF ESTATE OF NANCY J. CHAPMAN, DECEASED, APPELLANT, v. J. B. BUCK AND C. A. MOSELY, RESPONDENT
• Court: Missouri Court of Appeals

31 S.W.2d 98

224 Mo.App. 621

NELLE M. JOBE, ADMINISTRATRIX OF ESTATE OF NANCY J. CHAPMAN, DECEASED, APPELLANT, v. J. B. BUCK AND C. A. MOSELY, RESPONDENT

Court of Appeals of Missouri, Springfield

September 12, 1930

Appeal from the Stoddard County Circuit Court.--Hon. W. S.C. Walker Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Wammack Welborn & Cooper for appellant.

(1) Where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract or cause of action shall not be competent to testify either in his own favor or in favor of any party to the action claiming under him. Sec. 5410, R. S. 1919; Curd v Brown, 148 Mo. 82; Weiermueller v. Scullin, 203 Mo. 466; Elsea v. Smith, 273 Mo. 396; Mason v. Mason, 231 S.W. 971; Thomas v. Fitzgerald's Estate, 297 S.W. 425, 428. (2) Where an executor or an administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator. Sec. 5410, R. S. 1919; Leeper v. Taylor, 111 Mo. 312, 323; Weiermueller v. Scullin, 203 Mo. 466; Baker v. Lyell, 210 Mo.App. 230, 234; Hildreth v. Hudlow, 282 S.W. 747, 748; Thomas v. Fitzgerald's Estate, 297 S.W. 425, 427. (3) When the note or other contract shows upon its face that a party executed it as principal, he cannot be permitted to show that he did not so execute it, for to do so would be to contradict his written contract or obligation by parol, and this cannot be done. Picot v. Signiago, 22 Mo. 587; McMillan v. Parkell, 64 Mo. 286; Stephenson v. Bank, 160 Mo.App. 47; Minor v. Woodward, 179 Mo.App. 333. (4) A party who signs a note by the terms of which he promises as principal to pay it, cannot subsequently show, in an action against him by the payee, that he was only a surety; and it makes no difference if the payee knew that as between him and the other maker he was only a surety, for under the express terms of the note his contract was that of a principal. Stephenson v. Bank, 160 Mo.App. 47. (5) For an extension of time, granted to a principal, to discharge a surety, the extension must be for a valid consideration, for a precise and definite time and must be such as to preclude the creditor from proceeding to enforce payment. West v. Brinson, 99 Mo. 684; Burrus v. Davis, 67 Mo.App. 210, 214; Cummings v. Lumber Co., 130 Mo.App. 557; Bank v. Douglas, 178 Mo.App. 664; Bank v. Hilkemeyer, 12 S.W.2d 516. (6) Mere indulgence which the creditor may extend to the principal debtor will not discharge the surety; it must appear that the creditor has so bound himself in an agreement with the principal debtor that he cannot for a definite time, enforce the payment of the note. Burrus v. Davis, 67 Mo.App. 210, 214; Bank v. Hilkemeyer, 12 S.W.2d 516. (7) Permitting the maker of a note to pay the interest from year to year, without a valid agreement to extend the time of payment, will not discharge a surety. Burrus v. Davis, 67 Mo.App. 210, 215; Bank v. Love, 62 Mo.App. 378.

L. R. Jones for respondent.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.--

This is a suit upon a promissory note for the balance due thereon. The note which was filed with the petition showed that it was dated October 16, 1914, payable to Mrs. N.J. Chapman on demand, for $ 1850 signed by each of the defendants, as principal, payable at the Bloomfield Bank, with interest from date at the rate of eight per cent per annum. The note provided that the signers and endorsers each waived demand, notice of protest, and that the time might be extended without notice, and that if interest be not paid annually, or when due, the same to be added to the principal and bear interest at the same rate. The following endorsements appeared on the back of the note:

"Interest paid to Oct. 16, 1915.

"Interest paid to Oct. 16, 1916.

"Interest paid to Oct. 16, 1917, 148.

"Credit by cash $ 925.82, 10-20, 1917 by C. A. Moseley.

"Balance due $ 925.00, 10-16, '17 by J. B. B.

"Int. pd. to 10-16-18.

"Int. pd. to 10-16-20 74.00.

"Int. pd. to 10-16-21 74.00

"Int. pd. to 10-16-22 74.00.

"Int. pd. to 10-16-24 153.16."

J. B. Buck filed no answer and judgment was had against him with no appeal by him.

Defendant C. A. Moseley answered, admitting that he signed the note and that there was paid upon said note on October 20, 1917, the sum of nine hundred twenty-five dollars and eighty-two cents, and denied each and every other allegation in plaintiff's petition contained. As a further defense the answer contained the following averments:

"Defendant C. A. Moseley for another and further defense to plaintiff's petition as filed herein, states that he and J. B. Buck signed said instrument originally as joint makers of the same in this, to-wit: that each of said defendants was to pay one-half of the amount of said note and interest and the other defendant was to stand surety for and be bound in the capacity as surety for his co-defendant as to the remaining one-half; that such contract and agreement was known to the payee in said note, Mrs. N.J. Chapman, and that the said payee of said note, Mrs. N.J. Chapman at and prior to the execution of said note, knew that the defendant C. A. Moseley was bound as surety for his co-defendant, J. B. Buck for the other one-half of said note and interest.

"Defendant further states that thereafter and to-wit on October 16, 1917, the defendants J. B. Buck and C. A. Moseley for valuable consideration obtained an extension of the time upon and for the payment of said note by agreement with the payee of the same, Mrs. N.J. Chapman, acting by and through her duly authorized agent, so to do, extending payment to October 16, 1918.

"Defendant further answering states that thereafter and to-wit on October 20, 1917, the payee of said note, Mrs. N.J. Chapman acting by and through her duly authorized agent agreed with defendant C. A. Moseley, for valuable consideration that if he would pay his half of said note for which he was bound as principal at that time, together with the interest then due on his half of same, that she would release this defendant C. A. Moseley from any other payment upon said obligation as surety for J. B. Buck as to the other half of said note and interest; that this defendant C. A. Moseley relying upon said agreement paid on October 20, 1917, the sum of $ 925.82, and which said amount of $ 925.82 was the full amount for which this defendant C. A. Moseley was ever bound as principal, together with the interest thereon, and which said payment this defendant alleges was duly shown upon said note herein sued upon.

"This defendant further states that by reason of the foregoing allegations that he is not liable to the plaintiff for any amount upon the note sued upon herein and has not been liable for the payment of any part of said obligation since October 20, 1917, the date of his payment of $ 925.82, as hereinbefore set forth.

"Defendant further states that since said contract as herein alleged, releasing him from any further obligation upon said note, that all the parties to said contract of release that would be competent witnesses relative thereto, have died and by reason thereof, this defendant cannot make proof of said contract of release in any manner except as appears by the endorsement appearing upon said note made at the time of his payment of $ 925.82; that he relied upon said contract of release as aforesaid, and that at the time same was entered into the defendant J. B. Buck was solvent and was easily worth sufficient property to pay off and discharge the full amount the balance due on said note, and that to wait for a period of eleven years and longer, and after valuable and competent evidence sustaining the defense of the defendant C. A. Moseley hereto has been lost to him would be inequitable and work a hardship upon this defendant; that by reason of the facts as herein alleged, the plaintiff is and should be estopped from further proceeding against the defendant C. A. Moseley in this action.

"Wherefore, defendant C. A. Moseley again having fully answered prayed to be discharged and for his costs and expenses in this behalf incurred and that in addition thereto that this court cancel the obligation herein sued upon in so far as same predicates liability against this answering defendant, and prays that this court by order and decree adjudge this defendant released and discharged from said obligation.

"This defendant further states that if the court adjudge and find that the defendant is unable to establish by competent proof the contract of release as hereinbefore alleged, then this defendant alleges that after he paid the sum of $ 925.82 upon said note that he was only bound for the payment of the remainder of said note as a surety thereon, the full amount of same being then due by J. B. Buck as principal; that after said balance of said note and interest became due by the said J. B. Buck, that for a valuable consideration the plaintiff's intestate agreed with the said debtor J. B Buck to forbear the collection of said note and at which time this defendant was only bound as surety, from year to year for a great many years; that at the time of said agreements to extend said times of payment plaintiff's intestate knew that the defendant was secondarily liable for said balance due on said note and interest and made the same without the knowledge or consent of the said C. A. Moseley; that said J. B. Buck at the time said note became due, and for a number of years thereafter was...