131 Ky. 787 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing’-
The Farmers’ Bank of Wiekliffe brought this suit, against Charles Wickliffe to recover of him the amount' of four notes executed by ,0. P. Beck and him to the bank; the first being,dated July 17, 1905, for $3,000, due in 12 months; the second October 5, 1905, for $3,369.60, due in 12 months; the third, February 23, 1906, for $4,000, due in 6 months; and the fourth dated May 31, 1906, for $2,300, due in 3 months. The notes were all evidently written upon the same form, and, except as to amount and dates, are in the same words. The first note reads as follows: “$3,000.00 Wickliffe, Ky., July 17th, 1905. Twelve months after date we jointly and severally, promise to pay to the order of Farmers’ Bank of Wickliffe three thousand and no-100 dollars, negotiable and payable at the Farmers’ Bank of Wickliffe, Wickliffe, Kentucky, for value received with interest after maturity at’six per cent, per annum. O. P. Beck. Charles Wickliffe.” Wiekliffe by answer pleaded that he signed the notes at the bank’s request and for
Wickliffe testified on the trial: That one day Beck came to him, asking him to sign1 a note. That he then went to see Burton, the cashier, and said to him: “Did you send Beck to me to sign a note and take a mortgage?” He said: “Yes; I did. We cannot hold a mortgage, and I told him to go and get you to hold it for us.” He then said to Burton: “Now, that’s understood. I am holding the mortgage for the bank. It is your affair, and not mine. I am not responsible.” Burton replied: “All right, go ahead.” And he then signed the note. When the second note was brought to him, he thought it was a renewal of the first note, and paid no attention. The next note he thought was a renewal, and when the fourth was presented he did not sign it, and went to see Burton and told him that $4,000 was enough on the property and advised him to get additional security. Beck refused to give additional security, and he then said 'to Burton: “That’s up to you. It is your transaction. I have nothing to do with it. Whatever you say about it you can do.” Burton said: “Gro ahead, and sign it then, it’s all right.” And he then signed the last note. Wickliffe also testified that Burton
On this evidence the question is: Oan the evidence offered by the defendant be received' to contradict the written instruments themselves? He pleaded that the writings did not conform.to the real contract by reason of fraud or mistake; but there is an entire absence of any evidence of fraud or mistake. He was not deceived as to the purport of the writings. He understood perfectly what he was signing. There was; no misrepresentation made by Burton except the promise that he would not be held liable upon the writing. He knew that this part of the engagement was not in writing, and to have put it in the writing would have been to have nullified it. The bank could take a mortgage, but, if it could not, Wickliffe, a stockholder, would be charged with notice that the cashier had no authority to evade the law, and he would not be allowed thus to throw a loss on the other stockholders.
In Wright v. Remington, 41 N. J. Law, 48, 32 Am. Rep. 184, the defense was that Mrs. Remington had signed the note upon a representation by the plaintiff that the signing of it by her was a mere matter of form, and that she would not be held liable on it. In the disposition of this defense, the court said: “There is no rule better settled than that evi
On the trial of the case, the court allowed E. C. Watson, J. B. Wiekliffe, and others to testify to statements made by Burton as to what he had done after the transaction was over, and when he Was merely narrating what had taken place. This testimony could only be introduced for the purpose of contradicting Burton as a witness. It was not substantive evidence against the plaintiff at all. The statements of an agent in the transaction while he is managing it for his principal may be admitted against his principal because it is a part of the res gestae; but, when the transaction is closed and the agent merely tells what he has done or tells about what he has done, proof of these statements may only be introduced for the purpose of contradicting the agent as a witness if inconsistent with his testimony on the trial. It was shown by the evidence that on March 9, 1907, Beck paid into the bank $1,013.55, which was the interest on the notes for one year. He died very suddenly a day or so after this was done, and, after his death, the bank credited this money pro rata on each of the four notes. The amount was the interest on the four notes for a year. Burton testified that it was agreed between hkn and Beck that He might renew the notes for a year by paying the interest in advance.; that Beck made a deposit of the interest, but died suddenly without renewing the notes. If this was the agreement between Burton and Beck, then Wiekliffe was not released, because, although the money was paid, the notes had not been renewed; and,
Judgment reversed and cause remanded for further proceedings consistent herewith.