Wislizenus v. O'Fallon

• Decision Date: 28 February 1887
• Citation: 91 Mo. 184,3 S.W. 837
• Parties: WISLIZENUS v. O'FALLON.
• Court: Missouri Supreme Court

3 S.W. 837

91 Mo. 184

WISLIZENUS v. O'FALLON.

Supreme Court of Missouri.

February 28, 1887.

1. PROMISSORY NOTE — INDORSEMENT — PAROL EVIDENCE.

Recovery upon a promissory note, by one to whom it has been assigned, cannot be defeated by the maker showing a parol condition accompanying the making of it that it should be paid only in event it was used for a certain purpose, and that it had not been used for that purpose.¹

2. CONTRACT — CONSIDERATION — BANKRUPTCY.

The moral obligation to pay a debt is sufficient consideration to support the promise of a bankrupt made after his discharge in bankruptcy to pay a debt from which he had been discharged.²

Appeal from circuit court, Jefferson county.

Wislizenus & Kleinschmidt, for respondent. F. T. Farish and Dinning & Bryns, for appellant.

BRACE, J.

This is an action on a promissory note, executed by defendant in favor of John O'Fallon, dated January 21, 1875, payable six months after date, for the sum of $4,122.66, and assigned by him after maturity to the plaintiff. The defendant's answer is as follows: "He admits the execution and delivery of the note sued on; but, further answering, and for defense, defendant avers that he owed said John O'Fallon nothing, but that said note was made and delivered to John O'Fallon, the payee thereof, for the special purpose of using and employing the same in effecting a settlement of a certain judgment rendered in the circuit court, city of St. Louis, on February 5, 1873, against said John O'Fallon et al., and releasing the levy of an alias execution issued on said judgment to the sheriff of Jefferson county, Missouri, and then on the nineteenth of January, 1875, levied on the personal property of said John O'Fallon. But defendant avers that the object of so making said note failed, and that the same was never so used and employed, but was retained by said John O'Fallon until long after its maturity and until recently, when, for the purpose of bringing this suit, the same was passed over to the plaintiff; wherefore defendant avers that there has been a total failure of consideration for said note, and the same is null and void, and he prays," etc.

The case was tried by the court, without a jury, the issue found for the plaintiff, and judgment rendered in his favor for the amount of the note and interest. The undisputed facts leading up to the issue as they appear in the record may be briefly stated as follows: On June 30, 1871, John O'Fallon indorsed, for the accommodation of James O'Fallon, two notes, each for the sum of $22,050. On the twenty-seventh of November, 1871, James O'Fallon was declared a bankrupt. On the fifth of February, 1873, the Second National Bank, the holder, obtained judgment on one of these notes against John O'Fallon for the sum of $23,152.20. This debt was also proven in bankruptcy against the estate of James O'Fallon, who received his discharge therefrom on the eighth of December, 1874. On the seventh of May, 1873, John O'Fallon executed a deed of trust on his real estate to secure the judgment obtained against him by the bank, and on the ninth of January, 1875, his real estate was sold under the terms of the deed of trust, and A. W. Slayback, attorney for the bank, became the purchaser at a nominal figure, and on the nineteenth of January, 1875, an execution issued on said judgment was levied on all personal property of John O'Fallon, and on the twenty-first of the same month John went to James J., who thereupon executed and delivered to John the note sued on. On the twenty-third of January, 1875, John settled this judgment with means derived from other sources, without using the note of James J. O'Fallon. Beyond these facts, the testimony as to what was the consideration of the note consisted mainly of the evidence of John O'Fallon on the one side, and James J. on the other. The evidence for the plaintiff tending to prove that the note was executed by James J. in pursuance of an agreement then made between him and John that he (James J.) would pay that amount of the judgment against John; and, on the part of the defendant, that it was given to be used in some manner in releasing John's personal property...