Stevens v. Smotherman
| Decision Date | 17 February 1930 |
| Docket Number | No. 4582.,4582. |
| Citation | 24 S.W.2d 670 |
| Parties | F.L. STEVENS, APPELLANT, v. J.W. SMOTHERMAN, RESPONDENT.<SMALL><SUP>*</SUP></SMALL> |
| Court | Missouri Court of Appeals |
Appeal from Howell County Circuit Court. — Hon. E.P. Dorris, Judge.
REVERSED AND REMANDED.
J.L. Bess and J.N. Burroughs for appellant.
(1) The answer set up an affirmative defense and the burden of proof rested upon defendant to sustain it by competent evidence. Sec. 1415, R.S. 1919; Wells v. Hobson, 91 Mo. App. 379; Downs v. Horton, 287 Mo. 414, 230 S.W. 103. (2) Parol evidence of a contemporaneous agreement is inadmissible to alter the terms of a promissory note. First National Bank v. Henry, 202 S.W. 281, l.c. 283; Mutual Life Illinois v. McKinnis, 15 S.W. (2d S.) 937; Metropolitan Discount Co. v. Wasson, 235 S.W. 465. (3) Title to property is vested in purchaser when contract and notes are signed and accepted by the seller. State v. Rosenberger, 212 Mo. 648, 111 S.W. 509; State v. Kramer, 226 S.W. (pars. 1 to 3) 644; Matz v. Big Horn Glass Co., 269 S.W. (par. 5) 697. (4) The burden was on defendant to show actual knowledge on part of plaintiff as well as the actual existence of fraud and mere suspicion cannot justify a finding for defendant on such issue. Newton County Bank v. Cole, 282 S.W. 466; Marquand et al. v. Branum, 286 S.W. 443; Morgan v. Mulcahey et al., 298 S.W. 242. (5) In the absence of actual fraud the signer of a note or contract who possesses his faculties and able to read and write should not be permitted to inject some claimed verbal understanding. Magee v. Verity, 97 Mo. App. 486; O'Shea v. Lehr, 185 Mo. App. 690, 165 S.W. 841; Reddick v. Union Electric Light Company, 243 S.W. 382, l.c. 285. (6) A surprise which entitled plaintiff to a continuance justifies a reversal. Noah v. L.B. Price, 231 S.W. 300, l.c. (par. 1) 305. (7) Where plaintiff's pleadings are sufficient and supported by uncontroverted evidence which sustains and shows plaintiff entitled to recover, the appellate court as a matter of justice will review the evidence. National Bank v. Skeen, 29 Mo. App. 115; Brown v. Home Savings Bank, 5 Mo. App. 1; State ex rel. v. People's Ice Co., 246 Mo. l.c. 210; Johnson v. Pump Co., 274 Mo. l.c. 45, 202 S.W. 1143. (8) A party admitting the execution of a contract cannot excuse himself from living up to it merely because the other party thereto does or fails to do something which he thinks should or should not be done. Lasswell v. National Handle Co., 147 Mo. App. 497, 527; Barber v. Greenfelder, 152 Mo. App. 397, 133 S.W. 108; Simmons v. Schibsby et al., 238 S.W. 811. (9) Evidence of collateral agreements to a negotiable instrument or evidence contradicting or questioning the consideration are of no avail as a defense, unless the knowledge of such transactions are known to the holder at time he acquires title. Mayes et al. v. Robinson, 93 Mo. 114; Baade v. Cramer, 278 Mo. 516, 213 S.W. (pars. 1 to 5) 124; Downs v. Horton, 209 S.W. 595; Metropolitan Discount Co. v. Wasson, 235 S.W. 465. (10) Proof of transfer for value by uncontradicted evidence vests a valid title in the holder. First National Bank v. Stam, 186 Mo. App. 439, 171 S.W. 567; American Union Trust Co. v. Never Break Range Co., 196 Mo. App. 206, 190 S.W. 1040; Williams v. Schmeltz, 14 S.W. (2d S.) 966.
H.D. Green for respondent.
(1) The rule against parol evidence does not apply where a distinct collateral, contemporaneous agreement is offered in evidence though it relates to the same subject-matter. Roe v. Bank, 167 Mo. 406; Brown v. Bowen, 90 S.W. 184. (2) Parol evidence is also admissible for the further purpose of showing total or partial failure of consideration. K.C. Breweries v. Hafey, 193 Mo. App. 349; Roe v. Bank, 167 Mo. 406. (3) Where a written instrument executed pursuant to a prior verbal agreement or negotiation does not express the entire agreement or understanding of the parties, the parol evidence rule does not apply to prevent the introduction of extrinsic evidence with reference to the matter not provided for in the writing. 22 C.J. 1283; State v. Cunningham, 154 Mo. 161; Davis v. Scovern, 130 Mo. 303; Quick v. Glass, 128 Mo. 320; Greening v. Steele, 122 Mo. 287; Mosby v. Smith, 194 Mo. App. 20; Bowers v. Bell, 193 Mo. App. 210. And this applies to sales of personal property. Quick v. Glass, supra. (4) No new consideration is necessary where the old contract is made more definite and certain as the original consideration attaches to and supports the modification. Barr v. Johnson, 170 Mo. App. 394. (5) The consideration for the modification of an executory contract may rest in the mutual assent of the parties to the new contract. Carman v. Harrah, 182 Mo. App. 365; Smith v. Crane, 169 Mo. App. 695. (6) A written contract may be modified by a subsequent oral agreement. Davis v. Scovern, 130 Mo. 303; Lanitz v. King, 93 Mo. 513; Walker v. Auto Co., 191 S.W. 1061.
Action upon six promissory negotiable notes. Trial by the court who found for defendant. Plaintiff appealed.
The notes in suit were given by defendant to the Bernard Manufacturing Company of Iowa City, Iowa, and were, by them, endorsed to plaintiff. The answer admitted the execution of the notes and then averred that they were procured by fraud and were without consideration. Further, that the notes were given for certain merchandise and this merchandise had been returned to the manufacturing company and received by it and the contract with the said company annulled and terminated. Further that plaintiff had knowledge of the fraud practiced upon defendant at the time the notes were transferred to him and that he was not an innocent purchaser for value before maturity.
The evidence of fraud relied upon is found in the testimony of defendant and other witnesses to the effect that when the agent of the manufacturing company appeared at the store of defendant in Mountain View in Howell county, Missouri, he stated to defendant that he wanted to place some radios in his store to be sold to customers by himself or some man sent by the company to sell them, and they would see to the selling of the radios themselves and would pay defendant a commission on each sale made. With that understanding, the defendant signed the contract and notes attached thereto without knowing just what they were and supposed it was merely the agreement he had made as above outlined.
There is no contention that defendant was, by any artifice or trick, prevented from reading the contract and notes before he signed them and it is familiar law that under such circumstances he cannot now be heard to say that he did not know the contents of the instrument he signed.
An effort is made in this court to make it appear that the agreement on the part of the Manufacturing Company by their agent to sell the goods themselves and pay defendant a commission on each sale was a separate contract entered into between them after the other contract had been executed and was, therefore, as binding as if written into the original contract. The evidence does not support that contention....
To continue reading
Request your trial