Smith's Adm'rs v. Thomas

• Decision Date: 31 January 1860
• Citation: 29 Mo. 307
• Parties: SMITH'S ADMINISTRATORS, Defendants in Error, v. THOMAS, Plaintiff in Error.
• Court: Missouri Supreme Court

29 Mo. 307

SMITH'S ADMINISTRATORS, Defendants in Error,

v.THOMAS, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1860.

1. A written contract is presumed to contain the whole contract entered into between the parties thereto.

2. In a suit upon a promissory note absolute on its face, parol evidence is inadmissible to show that, though absolute in form, it was payable only upon a contingency, or that in a certain event only one-half the amount was to be paid.

Error to Jackson Circuit Court.

This was a suit upon the following due bill or promissory note: “February 8, 1855. Due Jabez Smith three hundred dollars, borrowed money. [Signed] Charles N. Thomas.” The defendant set up in his answer that the consideration of said note was the sum of three hundred dollars, borrowed of said Smith for the use of one Todd; that at the date of said note both Smith and Thomas had liens upon some slaves belonging to Todd to secure debts due them respectively; that there was also at that time a judgment and execution lien upon said slaves that was prior to the liens of Smith and Thomas; that Todd wanted Smith to loan him more money to pay off this prior lien; that Smith was unwilling to do so; that Smith, in order to induce Thomas to loan the money to Todd, promised Todd that if he would borrow the money from him for Todd, and give his note to him (Smith), he would lose half the debt if Todd did not pay to said Thomas the money loaned, and Thomas should be held to pay only one-half the note; that in consideration of this promise Thomas did borrow the money and gave the note sued on and paid the money over to Todd, who applied it to the payment and release of the prior lien; that Todd has never paid said sum of money nor any part thereof to defendant Thomas, and is hopelessly insolvent.

At the trial the evidence adduced supported the answer. Smith's lien upon Todd's slaves was prior to that of Thomas.

The cause was tried by the court without a jury. The court refused the following declaration of law asked by defendant: “If the court, sitting as a jury, believe from the evidence that Smith, for the purpose of inducing Thomas to borrow from him three hundred dollars to pay to said Todd, to enable said Todd to pay off the prior lien mentioned in the answer, did promise Thomas that, if he would so borrow said sum, to be applied by Todd to the liquidation of said lien, and give said Thomas' note therefor, that said Thomas should only pay the one-half of said note if he should fail to collect the same amount off of Todd thereafter; and that by said promise of Smith he did induce said Thomas so to borrow said sum and to give Smith the note here sued on, and that said sum so borrowed was applied to the liquidation of said prior lien; and that said Thomas has been unable to collect said sum or any part of it from Todd; and that Todd is not hopelessly insolvent, and that then it will find for plaintiff only one-half the amount of said note and interest.”

The court found for plaintiff.

Hovey, for plaintiff in error.

I. The promise of Smith was not within the statute of frauds. (23 Mo. 431; 26 Mo. 221.) The court ought to have granted the instruction asked. (See 8 Mo. 677; 2 Kent Comm. 465; 5 Pick. 384; 21 Mo. 573; Addison on Contr. 843; 3 Hill, 171; 20 Mo. 433, 297; 12 Mo. 298.) The evidence does not vary the written instrument; the due bill merely asserts a fact, and not a promise or contract.

Hicks & Shelby, for defendants in error.

I. There was no consideration for the promise made by Smith. It could not be set up to vary and contradict the written contract. (8 Mo. 161, 391; 24 Mo. 519; 17 Mo. 577.)

EWING, Judge, delivered the opinion of the court.

This was an action on a due bill executed by the plaintiff in error to Jabez Smith, deceased, for three hundred dollars, borrowed money. The answer sets up a verbal agreement between the defendant and Smith at the time the due bill was given, by which it is alleged that but half of the sum called for by it was to be paid by the defendant in a certain event.

The only point in this case that need be noticed is whether the verbal agreement relied on by the defendant was admissible as a defence to the action, and we are of opinion it was not. The instrument is in form a due bill, but in legal effect a promissory note,...