174 Mo. App. 628 | Mo. Ct. App. | 1913
Plaintiff sued the defendant as guarantor of a note executed by I. D. Kemp evidencing one of the four deferred payments on a threshing ma
Prior to the sale defendant had an arrangement with plaintiff’s selling agent, that for every sale defendant assisted in making, he was to receive a part of the commission. Consequently when plaintiff’s selling agent appeared in defendant’s store and asked him if he knew where a machine could be sold, defendant-told Mm of Kemp and went with the agent to see him. On the way, the agent agreed to give defendant fifty dollars if they succeeded in making a sale of the machine at $1050. It was ascertained, however, that Kemp could not pay anything down, and, as the plaintiff company would not sell to him on those terms, as he had no credit, defendant offered to guarantee one-half of the purchase price. The- dispute is over which particular half defendant agreed to guarantee. The sale was made in July, 1909, and defendant insists that he agreed to guarantee the one-half falling due that year, namely, the note falling due September 1, 1909, and the one falling due November 1, 1909. Plaintiff contends that nothing was said about which two of the four notes defendant was to guarantee.
The proposition to buy the machine on the terms above indicated with defendant as guarantor of one-half the purchase price was mailed to the plaintiff company for its acceptance. Accompanying it-went a statement, dated July 1, 1909, of the financial condition of defendant, signed by him; and also a contract, bearing his signature, stating that, for value received and in consideration of credit being extended to Kemp,
The company accepted the proposed contract and sold the machine to Kemp. When it arrived where it was to be set up and delivered, plaintiff’s selling agent had Kemp to execute the chattel mortgage on the machine and the four notes above mentioned, and also had defendant to sign a written contract of guaranty ob the back of two of said notes. It is defendant’s contention that the agent, by fraud, succeeded in getting him to guarantee the second note, due November 1, 1909, and the last note, due November 1, 1910, when the agreement and understanding was that defendant would guarantee only the first two notes falling due the samé year and season the machine was purchased. Kemp paid the first note when'due, and when the second note fell due, defendant assisted Kemp to the extent of $200 in paying that off. By reason of the payment of the first two notes, defendant insists the contract of guaranty has been fully performed.
The answer pleaded fraud in the obtaining of defendant’s signature to the fourth instead of the first note; and, in another count, set up a counterclaim for the fifty dollars commission due him on the sale of the machine. The jury found a verdict for defendant assessing his damages under the counterclaim at $9.97, this being the balance of defendant’s commission which, according to all the evidence, had remained unpaid. However, it had been credited upon the note before suit was instituted. So it was only in the event that defendant’s charge of fraud was successful, that he would be entitled to this sum on his counterclaim.
There are many points raised and discussed by both sides. In the view which we take of the' case, however, it is not necessary to notice inore than one
In the agreement of July 1, 1909, by which defendant agreed to guarantee two of the four notes, and upon which plaintiff agreed to sell Kemp the machine, it was stated that defendant would guarantee the note due November 1, 1910, which is the note now in controversy. Defendant does not claim that when he signed this contract he did not have his glasses, nor does he swear that he did not sign the agreement to guarantee. He would not say he did not sign it but only that one of the letters in his name did not look right. True, he says he did not agree in ivriting that day to guarantee any notes but' only gave a written statement as to his financial ability. But this alone is
So that on July 14, 1909, at the time the chattel mortgage and four notes were being presented to Kemp for execution, and two of the notes were to be guaranteed by defendant, there was a written contract between plaintiff and defendant specifying that the latter would guarantee the payment of this particular note in controversy. And, therefore, when the agent laid the two notes down on the table and said to defendant: “Here are your two notes” meaning that they were the two defendants was to guarantee, such statement, in the absence of fraud vitiating the above contract, was true since they were the two notes he had contracted in writing to guarantee. ’ Consequently, in the absence of fraud vitiating the above contract of July 1, there was no element of fraud in the statement of the agent, “Here are your notes.” • They were the notes called for in the contract of July 1. There was no other act from which fraud could be inferred at the time the notes were guaranteed nor is there any evidence showing fraud at the time the guaranty was signed on the back of the note. Fraud is never presumed. The burden of proving fraud rests on him who asserts it. While fraud may be inferred when it is a legitimate deduction from all the facts and circumstances in evidence, it is never to be presumed, and when a transaction under consideration may as well consist with honest and fair dealing as with a fraudulent purpose, it is to be referred to the better motive. [Garesche v. MacDonald, 103 Mo. 1.]
We have carefully read over the entire evidence •offered in support of the contention of fraud, and find none. Defendant was a business man, a storekeeper and, therefore, acquainted with business methods and -the means of ascertaining what’ he was doing when he signed his name on the back of the notes. There is no evidence of any trick, artifice or deception practiced