Kessler v. Clayes

• Decision Date: 01 February 1910
• Parties: JULIUS KESSLER, Appellant, v. GEORGE CLAYES, Administrator of the Estate of JOSEPH D. LUCAS, Respondent
• Court: Missouri Court of Appeals

125 S.W. 799

147 Mo.App. 88

JULIUS KESSLER, Appellant, v. GEORGE CLAYES, Administrator of the Estate of JOSEPH D. LUCAS, Respondent

Court of Appeals of Missouri, St. Louis

February 1, 1910

Appeal from St. Charles Circuit Court.--Hon. James D. Barnett Judge.

Judgment affirmed.

W. G Schofield for appellant; Frank A. Thompson of counsel.

(1) (a) The instrument sued on is a promissory note, with actual consideration stated. McGowen v. West, 7 Mo. 569; Finney v. Shirley, 7 Mo. 42; Brady v Chandler, 31 Mo. 28; Brainard v. Capelle, 31 Mo. 428; Jacquin v. Warren, 40 Ill. 459; Franklin v. March, 6 N.H. 364; Locher v. Kuechenmiester, 120 Mo.App. 701. (b) But this action originating in probate court where no pleadings are required, it is immaterial whether instrument is or is not a promissory note. Lee v. Dunlap, 55 Mo. 454. (c) The consideration, being stock of par value of $ 1000, was sufficient to support the promise or obligation sued on. Houck v. Frisbee, 66 Mo.App. 20; Kamp Co. v. Mfg. Co., 64 Mo.App. 117. (d) The instrument sued on recites that it is good for $ 1000 for stock surrendered. The word "surrender" in law means cancelled or yielded up and a transfer of the title as well as the possession. Buck v. Lewis, 46 Mo.App. 232; Robertson v. Winslow, 99 Mo.App. 546; Evans v. United States, 153 U.S. 591; In re Welling, 113 F. Rep. 192; Nolander v. Burns, 48 Minn. 13, 50 N.W. 1016; In re Dronfield, etc., Coal Co., 17 Ch. Div. 76. (e) Upon being indorsed in blank by claimant Kessler, the title passed to the certificates and they partook of the qualities of a negotiable security so as to pass from hand to hand by delivery. Kessler v. Mfg. Co., 43 Mo.App. 84; St. Louis, etc., Co. v. Partridge, 8 Mo.App. 580. (f) The words "and for which I am liable" while superfluous, necessarily refer to $ 1000. But even if this was not so, the evident intent from a common sense interpretation should be borne in mind. State ex rel. v. St. Louis, 174 Mo. 141. (2) While parol contemporaneous evidence is not admissible to contradict or vary the terms of a valid written instrument, still when the subject-matter therein is not entirely clear, parol contemporaneous evidence is permissible in order that the court may more perfectly understand the intent and meaning of the parties, and the court should not have excluded the offer of evidence on that point. Construction Company v. Tie Co., 181 Mo. 25; Edwards v. Smith, Admr., 63 Mo. 126; Smith v. Van Wyck, 40 Mo.App. 526; Garst v. Good, 50 Mo.App. 151.

T. J. Rowe and Henry Rowe for respondent.

It has been laid down in many cases as a general rule that extrinsic evidence is not admissible to remove a patent ambiguity, and that the instrument is inoperative and void. This rule, however, should be stated with qualification. The true doctrine seems to be, that while direct evidence of intention is not admissible in explanation of ambiguous terms in a writing, yet proof of collateral facts and surrounding circumstances existing when instrument was made, may be properly admitted in order that the court may be placed as nearly as possible in the situation of the testator or the contracting parties, as the case may be, with a view the better to adjudge in what sense the language of the instrument was intended to be used and to apply it to the subject-matter. Davis v. Davis, 8 Mo. 56; Bell v. Dawson, 32 Mo. 79; Campbell v. Johnson, 44 Mo. 247; Carter v. Holman, 60 Mo. 498. Evidence of acts under the instrument is admissible as showing the practical construction which the parties themselves placed upon the instrument. Gas Light Co. v. St. Louis, 46 Mo. 121; Ellis v. Harrison, 104 Mo. 270; Topliff v. Topliff, 122 U.S. 131.

OPINION

NORTONI, J.

This is a suit on a promissory note. The trial was had before the court without a jury. After taking the case under advisement, judgment was given for defendant, and the plaintiff appeals. The plaintiff filed the instrument sued upon as a demand against the estate of J. D. Lucas, deceased, in the probate court of St. Louis county. It was allowed and the estate appealed to the circuit court. Afterwards a change of venue was awarded to the circuit court of St. Charles county from whence comes the present appeal.

The instrument sued upon is as follows:

"Bridgeton, Mo., Nov. 28, 1902.

Good for $ 1000, one thousand dollars, for ten shares Kinloch Jockey Club stock surrendered to the undersigned, J. D. Lucas, by the owner of said stock, J. Kessler and for which I am liable.

JOSEPH D. LUCAS."

It is to be noted that the instrument bears date prior to the enactment of our negotiable instrument law of 1905 and the case is to be treated wholly irrespective of the provisions of that act.

We are unable to say upon what theory the court gave judgment for the defendant. No declarations of law were given and we are therefore unaided by anything in the record indicating the views of the court as to the law of the case. It is true the court refused one request by the plaintiff, but as this declaration failed to hypothesize all of the relevant facts in proof, it is of course presumed to have been refused for that reason. Although it is not clear on what theory the court gave judgment for the defendant, its judgment is sought to be sustained here on the proposition that the instrument sued upon is not a promissory note. If such is the theory of the judgment, then we believe it to be erroneous. On the other hand, if the judgment of the court was given for defendant on the theory that there was a failure of consideration for the note, then we believe it may be sustained. The argument advanced by the defendant is to the effect that the instrument in suit is not a note but is rather merely a receipt which the deceased executed to the plaintiff for ten shares of stock in the Kinloch Jockey Club. It is said the instrument is ambiguous in its terms and therefore it is proper to receive parol testimony showing the situation of the parties and the circumstances surrounding them, to the end of elucidating the intention in that behalf. Generally speaking, if the intention of the parties sought to be set forth in a written contract is not clear because of ambiguous language used therein, the ambiguity may be removed and the intention of the parties clarified by parol testimony to the extent mentioned. In other words, while direct evidence as to the intention is incompetent, it is always competent to receive parol testimony to the end of showing the situation of the parties, the surrounding circumstances and the relation which the words of the writing may bear to facts which constitute the subject-matter of the contract. [Ellison v. Harrison, 104 Mo. 270, 16 S.W. 198; Davis v. Davis, 8 Mo. 56; Bell v. Dawson, 32 Mo. 79; Campbell v. Johnson, 44 Mo. 247; Carter v. Holman, 60 Mo. 498; Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25, 84 S.W. 76; Greenleaf on Evidence, sec. 288.]

Be this as it may, except in cases where from fraud, mistake or illegality the instrument has not acquired original force as a contract, parol evidence is inadmissible to vary, contradict, add to or subtract from the terms of a written instrument. The rule proceeds upon the presumption that the parties have placed their entire engagement in writing, therefore, if the instrument imports a legal obligation with certainty, it alone shall be permitted to give evidence as to the terms of the agreement. [Tracy v. Union Iron Works Co., 104 Mo. 193, 16 S.W. 203; Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25, 84 S.W. 76; Greenleaf on Evidence, sec. 275.] Under this rule, it is clear that if the instrument sued upon is a promissory note, then parol testimony is incompetent to destroy its obligation as such and show it to be a receipt instead. As to the general proposition that a promissory note may not be shown by parol to have been intended as a mere receipt, see the following authorities in point: Billings v. Billings, 10 Cush. Mass. 178; Dickson v. Harris, 60 Iowa 727, 13 N.W. 335; Daniels on Negotiable Instruments (5 Ed.), sec. 80. But it is said the instrument is not a promissory note for the reason it contained no promise to pay. It is sufficient if such a promise is either expressed in words or is raised by the law as a necessary implication on an acknowledgment of indebtedness therein contained. [Daniels on Negotiable Instruments, sec. 37.] There are numerous cases in the books of this State and elsewhere to the effect that mere due bills are promissory notes within the meaning of the law even though no promise to pay the indebtedness acknowledged to be due is expressed in words therein. See the following: McGowen v. West, 7 Mo. 569; Finney v. Shirley, 7 Mo. 42; Brady v. Chandler, 31 Mo. 28; Jacquin v. Warren, 40 Ill. 459; Locher v. Kuechenmiester, 120 Mo.App. 701, 98 S.W. 92. And so a paper reciting "received of H. Doane for Samuel A. Reyburn, $ 180, Potosi, November 16, 1850," signed by J. H. Casey, was declared to be a note upon which Reyburn, the third party, in whose favor the money was received by Casey, could maintain an action; the principle asserted being that the acknowledgment of having received the money payable to Reyburn raised a promise by implication of law to pay the same to the party named. [Reyburn v. Casey, 29 Mo. 129.]

In Franklin v. March, 6 N.H. 364, the instrument sued upon and held to be a note was as follows: "October 19, 1830. Good to Robert Cochran, or order, for $ 30 borrowed money. Joseph W. March," it appearing that it was founded upon a sufficient consideration, borrowed money, the words "Good to Robert Cochran" were therefore said to clearly signify an acknowledgment of indebtedness in the amount mentioned and the instrument declared a promissory note by an application...