Kelley v. Briggs

Decision Date03 January 1927
Docket NumberNo. 15379.,15379.
Citation290 S.W. 105
PartiesKELLEY et al. v. BRIGGS et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

Action by W. B. Kelley, administrator, substituted as plaintiff for James M. Kelley, deceased, against J. D. Briggs and others. Judgment for plaintiff, and defendants appeal. Affirmed.

L. T. Dryden, of Independence, and I. A. Smith, of Kansas City, for appellants.

Jas. A. Kemper, Lloyd R. Fraker, and Milford W. Rider, all of Kansas City, for respondent.

BLAND, J.

This is a suit based upon two promissory notes in the sum of $4,420 each. At the conclusion of the testimony the court gave plaintiff's peremptory instruction directing the jury to find for him, resulting in the verdict in plaintiff's favor in the sum of $4,849.31, and defendants have appealed. Since the case was appealed here, the plaintiff James M. Kelley has died, and his administrator, W. B. Kelley, has been duly substituted as party plaintiff by order of the court. This is the second appeal in the case. See Kelley v. Briggs et al. (Mo. App.) 223 S. W. 959, where the main facts concerning the controversy may be found. The former appeal was from the action of the trial court in directing a verdict for the defendants. The case was then submitted in this court upon a somewhat different theory than is now presented. In the former appeal plaintiffs did not stand upon the indorsement put upon the two notes by Yingling, secretary of the mill company, but insisted that the case was one for the jury upon the question as to whether the giving of the note by plaintiff to the bank was understood by the parties to be a purchase pro tanto of the two notes by plaintiff, or merely to be a payment of the notes by plaintiff pro tanto as to the defendants only and a purchase as to the mill company, and whether it was understood that, in the event the mill company failed to reimburse plaintiff for giving his obligation to the bank, the defendants would reimburse him. Plaintiff's theory now is that the indorsement by Yingling upon the notes, made at the meeting of certain stockholders of the mill company referred to in the former opinion, constituted a contract in writing that cannot be varied by parol testimony and shows as a matter of law that the giving of his note to the bank constituted a purchase of the two notes pro tanto as to all of the parties.

The evidence shows that at this meeting the bank was represented and what was done there was agreed to by the bank. The indorsement upon the two notes reads as follows:

"These notes collateral for individual notes signed by A. L. Yingling, J. T. Curtis, J. Mather, J. D. Briggs, J. M. Kelley, dated September 8, 1910."

The issues at the present trial were so narrowed by the pleadings that it is proper for us to state in a general way what the pleadings contained. The petition alleged that on September 8, 1910, plaintiff executed and delivered to the bank, his promissory note in the sum of $2,180 (2,181) "in settlement and payment to said bank of that amount or portion of a certain then existing past-due indebtedness" of the mill company and defendants herein; that part of said indebtedness were the two said promissory notes, each in the sum of $4,420, and that these notes were past due; that they were signed by the mill company and these defendants; that plaintiff executed his said note "* * * along with other notes made by these defendants to the said bank for the purpose of aiding the defendants in obtaining an adjustment and an extension of time for the liquidation of the indebtedness above described, and upon the consideration, promise, and agreement on the part of the defendants that the lastabove described notes should be assigned by the said bank and attached to and remain with his said note unpaid, and as the obligation of these defendants and the Independence Planing Mill & Supply Company, as collateral thereon, to secure the payment of the said note so executed and delivered by the plaintiff, and to protect him against loss by reason thereof; that in pursuance of said agreement the said two notes as above described were attached to the said first-described note and have since remained therewith as and are now security there for the repayment thereof to, the plaintiff." The petition then alleged that plaintiff was compelled to, and did, pay his said note, together with interest thereon, and prayed for judgment for the amount he paid, with interest and attorney's fees.

The answer admits the execution of said note by plaintiff, but pleads that defendants each executed a note in a like sum to the bank and at the same time plaintiff executed his note; that plaintiff was an officer and he and defendants were stockholders of the mill company at the time the two $4,420 notes were executed and at the time mentioned in the petition the bank held these two notes; that the said two notes were signed by the mill company and by the defendants; that the bank was threatening to sue upon the notes and "* * * that the plaintiff herein, together with the defendants, for the purpose of securing said bank in the payment of said notes, did mutually agree that the plaintiff would execute his note for the sum of $2,181 and each of the defendants his note for the same amount, and that the said abovedescribed notes for $4,420 each should be put up and held as collateral by the defendants herein, and that said notes were put up as collateral and attached to the aforesaid notes executed by defendants herein." The answer then denied that plaintiff executed his note for the purpose of obtaining a settlement and extension of time for payment of the two notes due the bank and denied that there was any promise or agreement that the two notes should be attached to and remain with plaintiff's note as collateral to secure the payment of his note and to protect him against loss by reason thereof; that "defendants say that the plaintiff and the defendants were to share equally in the loss, if any, there should be by reason of having to pay said notes"; that defendants had paid their separate notes and denied that there was any agreement whereby they were to pay any part of the note executed by plaintiff, and alleges that plaintiff became liable to the bank in the same way as did Yingling and each of the defendants. Defendants denied that they owed plaintiff any sum of money. The answer contained no general denial, but merely the Specific denials that we have set forth. It did not deny that plaintiff had paid his note to the bank. The reply consisted of a general denial. Neither the petition nor the answer stated in what capacity the two notes for $4,420 each were signed by the defendants. It seems to be admitted that they signed as sureties for the mill company.

There was some parol evidence introduced by both parties on the question as to what the agreement was between the parties at the meeting referred to. There was evidence on the part of both plaintiff and defendants that the two notes were put in the bank as collateral for the individual notes of plaintiff, defendants, and Yingling, and were to be held by the bank as trustee for all of these parties; also that it was agreed at the meeting that any money the mill company might pay on the note should be shared by all parties giving their individual notes. There was evidence pro and con on the question that, if the mill company did not pay plaintiff the amount of the obligation that he gave, the defendants would make up the difference. There was other evidence that the agreement ran for the benefit of all five men and against the mill company only. However, the theory that the case apparently was finally decided upon is shown from the following quotations from defendants' brief, taken from the record of what happened at the trial. On cross-examination of plaintiff's witness Yingling, defendants asked the witness in reference to the alleged agreement to the effect that plaintiff was to be held harmless by defendants in case he had to pay his note. Counsel for plaintiff objected to ,the question, stating:

"The sole obligation of these people is expressed right here on the back of these notes and the face of the notes, and it would be a conclusion anyway."

In their examination of one of the defendants, defendants sought to show that there was no agreement to reimburse plaintiff on their part. This was objected to by plaintiff because:

"My objection is that the plaintiffs make no contention, in the first place, that anything like that was said or done, and for the further reason that it is calling for an oral agreement, which would in effect contradict the written agreement upon which the plaintiff's cause of action rests, and it asks for a conclusion as well.

"Mr. Dryden: Under the statement of counsel that he make no such claim that any agreement of that kind was made by these men, I withdraw the question."

It therefore seems that the case in the end was tried by plaintiff on the theory that the written indorsement by Yingling could not be varied by parol, and this must have been the theory upon which the court decided the case. We think that, undoubtedly, the action of the trial court in directing a verdict for plaintiff was correct. The admissions contained in defendants' answer, together with the...

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