157 Mo. 593 | Mo. | 1900
By this equitable proceeding plaintiffs seek to have cancelled a certain note executed by them to defendant on the twenty-ninth of September, 1893, and to have satisfied the record of a deed of trust covering certain real estate belonging to plaintiffs, given to secure said note.
The petition averred that the plaintiffs had become sureties on a bond, to pay for beer and other supplies bought by one Joseph 0. Kennedy of the defendant; that Kennedy af-terwards became insolvent and unable to pay -his debts, and the defendant fraudulently represented to plaintiffs that the indebtedness of Kennedy which he was unable to pay, accrued after they became such sureties on said bond; that the bond provided for the payment for beer, etc., which Kennedy should buy of defendant after its execution; that on account of defendant’s representations as to when the indebtedness accrued, plaintiffs were induced to give a note and deed of trust for said indebtedness, when in fact it all accrued, except a small amount, before they signed the bond; that when plaintiffs executed the note and deed of trust aforesaid, they paid defendant $100 in cash, and that since then, and prior to the discovery by plaintiffs of the real facts of the case, they had paid defendant on said note executed by them the further sum of $180.84; that said two sums paid by them to defendant exceeded the amount of their obligation under the bond by $189.19. The petition contained a second count at law, setting forth the same facts as in the first count, and averred that plaintiff had overpaid the amount they were obligated to pay for Kennedy in the sum of $189.79, for which they asked judgment. The answer filed by defendant was a
The facts show that one Joseph 0. Kennedy for some time prior to April 26, 1893, had been engaged in tbe saloon business in tbe town of Monett in this State, and as such had been tbe agent and representative of tbe defendant herein, tbe Anheuser-Busch Brewing Association of St. Louis, for tbe sale of its beer in said town of Monett; that on said •twenty-sixth of April, Kennedy as principal and these plaintiffs as sureties executed and delivered to defendant their bond in tbe penal sum of two thousand dollars, conditioned that said Kennedy would pay for all beer and other merchandise of like kind, ordered and bought of tbe defendants •after tbe execution of said bond; that after said date and prior to tbe twenty-eighth day of September following, Kennedy purchased beer and other goods of defendant to the amount of only $1,423.75 and that he paid on account of said purchase the sum of $1,302.70, which had been duly credited thereon. It also appears that prior to the time plaintiffs executed the bond aforesaid with Kennedy, that Kennedy had become indebted to defendant on account of beer previously purchased in the sum of $1,777.80. Of this last indebtedness the plaintiffs herein had no particular knowledge, although they say they heard that Kennedy was owing defendant at that time something on account. The evidence further shows that during the month of August following, one B. S. Schoeffel, a local agent of defendant residing at Springfield, called upon the plaintiff Louis Beland (who is
. At the last interview Beland demanded that Schoeffel get a statement from Kennedy, showing the exact amount of his indebtedness to defendant since the execution of the bond, and Schoeffel replied that Mr. Nicoud, the traveling auditor of the defendant company, would be in Springfield in a few
TJpon the note so given .the plaintiff, Louis Beland, paid one hundred dollars on the day of its execution, and afterwards the sum of $181.42. When the note become due, according to its terms, an extension of one year was asked by the plaintiff Louis Beland, which was granted by the defendant, but before the time for the maturity thereof under the extension had arrived, the plaintiffs had repudiated the entire transaction and begun this proceeding to have the note and deed of trust cancelled. This is in general an outline of the facts. Other details will be given during the course of the opinion as may become necessary.
TJpon all the fact, as said above, the trial court found the issues in favor of the plaintiffs, and made its order that the note be cancelled and surrendered to them, and that an entry of satisfaction on the record of the deed of trust be made, etc. Under any and every possible phase' of the testimony, the judgment of the trial court was for the right party. If it be conceded, as contended by appellant, that no intention was shown on the part of Schoeffel and Nicoud, or either of them, as agents of defendant, to deceive the plaintiffs, or to misrepresent the condition of the account of Kennedy with
If by tbe indulgence of a superabounding charity tbe court should be induced to conclude from tbe testimony that u either Nicoud tbe auditor of tbe defendant company, nor Mr. Sehoeffel tbe local agent of defendant at Springfield (who bad been instructed at tbe beginning of bis work by Mr. Olauss, defendant’s general manager at St. Louis, “to approach them [plaintiffs] in a diplomatic way”), knew tbe true condition of Kennedy’s account with tbe defendant company, at tbe time negotiations were begun with plaintiffs, .which resulted in tbe final execution of tbe note and deed of trust in controversy, but made all of their statements, as to amount and tbe condition of Kennedy’s account with defendant, as upon information and not from personal knowledge, plaintiffs were none tbe less misinformed.'
The plaintiffs were obligated to the defendant only in such a sum and to such an amount as Kennedy had failed to pay the defendant on account of goods purchased since the execution of the bond in April, 1893, and no reason is given or act shown to indicate that they intended to secure any other or different obligation, except as that intent is gained alone from the fact that a larger obligation is named in the note and deed of trust. While defendant’s agents, who procured the note and deed of trust to be executed, iftade bold to deny that they knowingly and falsely represented to the plaintiffs of their own knowledge, that Kennedy’s indebtedness to defendant since the execution of the bond was the amount of $1,873.85, they have failed to deny that plaintiff ever agreed to secure the amount of Kennedy’s debts for which they were not liable under their bond.
In a case like the present, where no consideration is shown for the giving of the note and deed of trust securing same, that was executed by plaintiffs in excess of their obligation under the bond of date April 26, 1893, equity will relieve against their enforcement, or interfere to effect their cancellation and annulment, whether their execution was brought about through the fraud of the beneficiary or by mistake or inadvertence of the maker. Neither fraud or deceit, care or diligence, are governing elements in a case of this character. The sole inquiry is, was an error made by mistake of the parties, or by a mistake on part of the maker, conjoined with and induced in part by the fraud of the beneficiary or its agents f
.If the note and deed of trust in controversy were made through a mistake of the fact, as to the amount of Kennedy’s
By reason of the transaction defendant parted with nothing; it waived no rights that it might otherwise have exercised to its advantage, had the mistake not been made; by reason thereof, it did no act to its injury, or from which injury might flow. By the giving of the note and deed of trust defendant’s condition was in no way altered, except for the better to the extent of the payment of $189.79, made by plaintiffs on the note in excess of the amount they were obligated to pay on account of the bond.
By what process of reasoning, or under what rule of law', an act of negligence on part of the plaintiffs, which resulted alone to the good of defendant (if such plaintiff’s failure to ascertain the true state of the account between Kennedy and the defendant, before signing the note and deed of trust in question, at defendant’s solicitation, can be characterized) can be invoked to validate a worthless obligation, or to stay the hand of Justice in the effort to arrest its force and execution, we are at a loss to conjecture.
The doctrine of estoppel contended for by appellants is wholly inapplicable to the facts of this case. The plaintiffs did no act or acts, they made no representations or statements, upon which defendant acted, that caused a change for the worse in its relations to any of the original parties to the indemnity bond. Plaintiffs simply make a mistake in giving their note for more than they were obligated under the terms of the bond, according to defendant’s view of the testimony, while on the other hand, if we take the view of the plaintiffs, the act was induced by the direct fraud and misrepresenta
If instead of this suit by plaintiffs to cancel the note and deed of trust, the defendant had begun an action to recover of plaintiff the amount of the note, can it be doubted that the defense of no consideration would be heard, and that, too, without regard to the negligence or want of prudence on part of these plaintiffs in failing to properly investigate into the matters and facts that led up to and resulted in the making of the note ? If the law would defeat defendant in the attempt to enforce its demand on account of its want of consideration, equity should certainly aid the plaintiffs by the cancellation of'that obligation, made without consideration, and under a mistaken view of facts, which it must, at least, be said, was induced in part by the “diplomatic way” the plaintiffs were approached by defendant’s agents. To relieve against such mistakes equity has full and ample power.
Appellant’s further contention that plaintiffs’ recognition of the validity of the note in controversy by making a payment thereon after the discovery of the. mistake that led to its execution, and the long delay thereafter in instituting this action, is fatal to plaintiffs in this action, is also untenable under the facts of the case. In the first place, the evidence does not show that the plaintiff paid any part of the note after they were possessed of the full facts of the case.
Early in the month of March, Louis Beland again wrote to Kennedy, requesting that he give to him a statement showing the amount of his indebtedness to the defendant before and after the signing of the bond, and again received an answer, that he could give plaintiff nothing that would enlighten him. Under this confused and unsatisfactory state of facts, Louis Beland, on the twenty-eighth day of March, 1896, paid the interest due upon the note, and asked and was granted an extension thereon for one year. In April, Louis Beland again wrote to Kennedy for the full facts of the account, and getting no satisfaction regarding the matter, employed an attorney to investigate the facts for him, and it was not until June of that year that the true state of the account was made known to him. Information to Louis Beland that plaintiffs had made to defendant a note for more than they were liable on account of having signed Kennedy’s bond, or
The payment of interest on the note in March was no more a recognition of its validity by plaintiff, then, than was the signing of the note on the twenty-eighth of September, 1893, a recognition of the amount of their obligation to the defendant under the bond, which they had previously signed with Kennedy. In both instances plaintiffs were deceived and kept in the dark, as to the full and true facts of the case.
But if it be said that plaintiffs did pay interest on the note in controversy, after they had been informed as to their non-liability under the bond which they had signed with Kennedy, and after they had been informed that the note had been obtained by deception and fraud, still that act would not amount to a ratification of the obligation expressed in the note, which plaintiff could not now avoid. The note was given without consideration, in the first instance, and for that reason alone could have been repudiated at any time. When the interest due on that note was paid by plaintiff
Likewise the question of ratification implied by law against one who fails to repudiate a transaction in proper time after the discovery of the fraud that led to its creation has no application to an agreement made without consideration in the first instance, as the note or deed of trust in question. The law by no presumption can make that binding upon a party, which that party by direct agreement could not make binding in law against himself. The presumption ' which the law indulges in favor of contracts involved in fraud in the first instance, that they will be carried out notwithstanding the fraud if not repudiated in a reasonable time after the discovery thereof, does not apply to those unilateral in their burdens, but only to those mutual in their obligations. 'No amount of knowledge, and no delay in announcing its acquisition, by way of repudiating the obligation of a contract, will raise the presumption against the defrauded party, making the contract without consideration that he is to abide by its result. The defendant in this action gave nothing, promised nothing, and waived nothing, hence the reason for strict promptitude, as under the rule governing contracts carrying mutual obligations -is wanting and has no application whatever. The judgment of the trial court wag for the right party, and will be affirmed.