Merchants' Nat. Bank v. Brisch

• Decision Date: 03 April 1911
• Citation: 154 Mo. App. 631,136 S.W. 28
• Parties: MERCHANTS' NAT. BANK v. BRISCH et al.
• Court: Missouri Court of Appeals

136 S.W. 28

154 Mo. App. 631

MERCHANTS' NAT. BANK v. BRISCH et al.

Springfield Court of Appeals. Missouri.

April 3, 1911.

1. EVIDENCE (§ 397)—PAROL EVIDENCE AFFECTING WRITINGS.

One admitting that he signed a written contract cannot deny that its terms express the agreement, and vary them by parol evidence.

2. EVIDENCE (§ 434)—PAROL EVIDENCE AFFECTING WRITINGS — INVALIDATING WRITINGS.

Though a person may not generally deny that his written contract expresses the agreement made, that rule cannot be invoked by one who has overreached a party, who was by reason of ignorance or some other cause unable to protect himself, and hence where a threshing machine salesman, by means of drink, and through their ignorance, overreached two foreigners, they are liable to neither him nor his principal.

3. SALES (§ 38)—VALIDITY—FRAUD.

Where an agent of a threshing machine company verbally agreed with the purchasers of a machine in consideration of the order to deliver the machine for a certain amount of freight, and after they became intoxicated, presented different contracts which they signed, there was no meeting of the minds.

4. BILLS AND NOTES (§ 537)—ACTIONS—CONSIDERATION—EVIDENCE—JURY QUESTION.

In an action on two notes given for the purchase price of a threshing machine outfit, evidence held sufficient to go to the jury upon the question of failure of consideration through the seller's breach of contract.

5. BILLS AND NOTES (§ 329) — STATUTORY PROVISIONS.

The negotiable instrument law has no application to notes executed prior to the time it took effect.

6. BILLS AND NOTES (§ 344)—NEGOTIATION— BONA FIDE PURCHASER — NOTICE OF DEFAULT—UNPAID INTEREST.

Where a note provided that interest was payable annually, a default of interest appearing thereon when it was transferred to the plaintiff carried on its face evidence of dishonor, and hence was evidence that he was not a bona fide purchaser for value before maturity without notice.

7. BILLS AND NOTES (§ 525)—ACTIONS—EVIDENCE—FINDING.

In an action upon a note, evidence held to support the finding that the plaintiff was not a bona fide purchaser for value without notice before maturity.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by the Merchants' National Bank against Gottlieb Brisch and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Jones Bros. and C. H. Shubert, for appellant. Watson & Holmes, for respondents.

GRAY, J.

This is a suit on a note for $630, bearing interest at the rate of 6 per cent. per annum, payable annually, dated June 12, 1905, and due on or before the 1st day of October, 1907, signed by the defendants and payable to Russell & Co., and by that company indorsed to plaintiff on the 9th day of February, 1907. The cause is on its second visit to this court. By reference to our former opinion in 140 Mo. App. 246, 124 S. W. 76, the nature of the case will be ascertained.

At the last trial the alleged written contract for the purchase of the machinery for which the note was given was offered in evidence. It is dated April 26, 1905, and is an order signed by the defendants to Russell & Co., to ship about June 1, 1905, a threshing outfit to the defendants, and providing that, on the arrival of the machinery, the defendants should deliver a secondhand traction engine, and also execute three notes for $650 each, coming due October 1, 1905, 1906, and 1907. The contract also contained a clause that defendants should execute a deed of trust upon 320 acres of land owned by them to secure the payment of the notes. The defendants proved, over the objection of plaintiff, that, on the day the contract was signed, they notified the agent of Russell & Co. that they desired the machine to be shipped June 1st, to the town of Russell, in the state of Kansas. The defendants also proved over the objection of the plaintiff, that the machine was to be shipped from St. Louis, and the agent guaranteed the freight would not be over $100. The defendants went to Kansas to receive the machine, but it did not come until some time in July, and, when it did, the conditions of delivery sent by the shipper were such that, in order to get possession of the machine, defendants were required to execute a deed of trust upon the 320 acres of land, and to pay freight on the machine from Ohio to Kansas, amounting to about $375. The defendants refused to execute the mortgage or to pay the freight, and therefore did not receive the machine. The appellant has filed an abstract of the record, containing a portion of the testimony in narrative form. In appellant's brief, however, the statement is found that defendants offered testimony to the effect that they were drinking at the time the contract was signed, and did not know what it contained, and that they also undertook to show that they could not read or write the English language.

The testimony tends to prove that Russell & Co. were manufacturers of threshing machines in Ohio, and that in 1905, one W. H. Mitchell, as their agent, visited the home of the defendants with the view of trading them a new threshing machine for an old machine they had; that, in order to get the defendants in the notion of buying, he always took with him one or two bottles of whisky; that finally the contract and the three notes above mentioned were signed by the defendants. The notes were dated June 12, 1905; but all the testimony shows they were signed on the day the contract was executed. When the contracts were signed, the defendants were drinking, and they claim that on account thereof they did not know what was in the contracts, and did not know the clause was therein to the effect that they were to pay all the freight, or were to give a deed of trust on their land. On the contrary, they claimed they were to only pay freight from St. Louis and not exceeding $100.

The general rule is that a party, when sued...