Poindexter v. McDowell

• Decision Date: 06 February 1905
• Citation: 110 Mo. App. 233,84 S.W. 1133
• Parties: POINDEXTER v. McDOWELL et al.
• Court: Missouri Court of Appeals

84 S.W. 1133

110 Mo. App. 233

POINDEXTER v. McDOWELL et al.

Kansas City Court of Appeals. Missouri.

February 6, 1905.

LIFE INSURANCE — PREMIUMS — PROMISSORY NOTES — ACTIONS ON — DEFENSES — MISTAKE — FRAUD — CONTEMPORANEOUS VERBAL AGREEMENT VARYING WRITTEN INSTRUMENT — EXCEPTIONS TO RULE — PEREMPTORY INSTRUCTIONS — VERDICT.

1. The rule that no contemporaneous verbal agreement adding to a written contract can in any manner affect it is subject to exception in instances of fraud, accident, or mistake.

2. Evidence that, through failure to read certain notes due in one year, the maker thereof signed the same, believing them payable immediately, does not show mistake constituting a defense.

3. Evidence that, at the time defendants executed their notes for the premium on a life insurance policy, the agent of the insurance company verbally agreed that the company would loan money to defendants, and that such agreement has not been carried out, does not show fraud in obtaining the execution of such notes.

4. Where defendant's evidence shows no defense, the court should peremptorily direct a verdict for plaintiff.

Appeal from Circuit Court, Moniteau County; James E. Hazell, Judge.

Action by John S. Poindexter against James McDowell and Remmie McDowell. Judgment for plaintiff, and defendants appeal. Affirmed.

L. F. Wood, for appellants. R. M. Embry, for respondent.

ELLISON, J.

This action is based on two negotiable promissory notes given to one Dickey, and by him transferred to plaintiff before maturity for value. At the close of the evidence for both parties, the trial court directed a verdict for plaintiff. The only question for consideration is the propriety of the peremptory instruction given in plaintiff's behalf. The undisputed evidence showed that the notes were given for premium on a life insurance policy which defendant McDowell took out through Dickey, the agent of the insurance company; that they were transferred to plaintiff for value before maturity. There can be no possible question but that plaintiff's case, as made by evidence in his behalf, demanded a verdict from the jury, unless it was met by some legal defense in the evidence introduced by defendants. Defendants admitted they gave the notes for a life policy, but said that the agent, Dickey, verbally agreed at the time that his company would loan McDowell $5,000 at 5 per cent. interest, with which the latter could take up a mortgage then on his farm at a higher rate of interest, and that the notes in suit were to be paid out of the money so...