38 Mo. App. 484 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The plaintiff’s action is on two promissory notes for three hundred dollars each. The notes were signed by one E. Pohlman and the defendant. Pohlman died after the maturity of the notes, and prior to the institution of this suit. The defendant in his answer admitted the execution of the notes, but he alleged that he signed them as a surety, and that he had been released from liability by reason of agreements or contracts between the plaintiff and Pohlman, by which the tim.e for their payment had been extended, in that these contracts had been made without his knowledge or consent. The cause was submitted to a jury, and the verdict was for the defendant, and judgment was entered accordingly.
At the close of the evidence, the plaintiff asked an instruction in the nature of a demurrer to the defendant’s evidence, which was refused by the court. This constitutes the plaintiff’s first assignment of error.
The burden of proof was on the defendant to make out his special defense, and if he failed to introduce any substantial evidence to sustain it, then the judgment is wrong and will have to be reversed.
It has been held by this court, and the supreme court, that the receipt of interest in advance for a definite period does not, of itself, furnish any evidence of a valid contract for an extension of time for its payment ; and, unless there was other independent evidence tending to prove such contract, or unless such an agreement was fairly inferable from other circumstances established by the evidence, the issue-as to whether the surety was discharged should not have been submitted to the jury. Russell v. Brown, 21 Mo. App. 51; Stillwell v. Aaron, 69 Mo. 539; St. Joseph Fire & Marine Insurance Co. v. Hauck, 71 Mo. 465; Merchants' Insurance Co. v. Hauck, 83 Mo. 21; Hosea v. Rowley, 57 Mo. 357; Coster v. Mesner, 58 Mo. 549. The defendant’s counsel insists that, while the simple fact of the payment of interest in advance is not, of itself, sufficient evidence of a contract of extension, yet, when coupled with the other facts and circumstances shown by the evidence in this cause, it was sufficient to authorize the
The cashier and assistant cashier of the plaintiff bank were the. only witnesses who testified concerning the payment; of interest by Pohlman, and what'was said and done by the parties at the time. They were introduced as witnesses by the defendant, and their credibility must be considered as vouched for by him, notwithstanding they were the employes of the bank. The cashier swears positively that he made no contract with Pohlman for an extension of time; that the interest was received without special agreement; that his action in the premises was a matter of indulgence; and that the bank could have sued on the notes at any time by refunding the unearned interest. It clearly appears by the cashier’s testimony that it was customary, in conducting the business of the bank, to allow .matured paper to remain in that condition; that, instead of taking a renewal note, or agreeing with the payees for a definite extension of time, the interest for either thirty, sixty or ninety days would be collected in advance, and the notes credited accordingly; and that, in such cases, the right of the bank to sue was always-reserved. The assistant cashier testified that, if there was any contract with Pohlman for an extension of time for the payment of the notes, he knew nothing of it.
It must be conceded that the positive declarations of these witnesses disprove the special defense relied on
Under this view of the case, we are of the opinion that there was no substantial evidence of a contract, either express or implied, for the extension of the time for the payment of the notes in controversy. The testimony of the cashier and his assistant, as to the custom of the bank in dealing with overdue paper, is uncontradicted, and is not discredited by a single fact. The cashier states that he collected the interest from Pohlman in pursuance of this business rule; that there was no contract between them to the contrary; and that at any time the bank was at liberty to sue by refunding the unearned interest. This evidence completely disproves the defense, and we have been unable to find, in this record, any substantial evidence that this statement of the cashier is not true. The learned judge, before • whom the case was tried, was of a different opinion, and this fact has led us to a very critical examination of all the evidence as preserved in the bill of exceptions, and our conclusion is that the opinion entertained by him is not fairly supported by the evidence, and it could only be upheld by such, inferences as the law does not justify. This assignment of error will have to be ruled in plaintiff’s favor.