154 Mo. App. 228 | Mo. Ct. App. | 1911
This is an action by plaintiff to recover of the defendant the amount and interest of a promissory note alleged to be due to plaintiff from defendant. The note reads as follows:
“$1000.00 Jefferson City, Mo., April 12, 1907.
On demand after date I promise to pay to the order of the First National Bank of Jefferson- City, one thousand and no 100 dollars, for value received, negotiable and payable without defalcation or discount, at the First National Bank, with interest at the rate of six per cent per annum from date.
C. H. Asel.>’’
At the same time defendant in connection with said’note executed the following: “Having executed my note as above, and being desirous of securing the same I hereby pledge, as collateral security two shares stock in Jefferson City Opera House Co. . . . Now, in default of payment of said note at maturity I hereby authorize said hank to sell the same at public or private sale, or otherwise, at its option, on the non-performance of this promise, without notice, and apply the proceeds to the payment of the above note; and in case the proceeds of said sale are not sufficient to cover the' amount of the above note I agr.ee to pay the balance on demand," it being required, on payment of the amount loaned as specified above, and at any time before said collateral security shall have been sold, to surrender the same to me. C. H. Asel.”
There are two payments of interest endorsed on said instrument. The defendant answered in part as follows: “Comes now the defendant for his second amended answer to plaintiff’s petition and admits that plaintiff is and was at.the dates mentioned in its peti
“For other and further answer to plaintiff’s petition, defendant states that the promissory note, described in plaintiff’s petition, is and was wholly without considera tion,. and that the same is not and never was binding upon defendant; that plaintiff accepted said note with full knowledge of its infirmities, and well knew at the time said note was executed and delivered that the same was wholly without consideration.
“Defendant for further answer to plaintiff’s petition says that the only pretended consideration for the note described in plaintiff’s petition was the transfer to defendant of certain shares of the capital stock of the Jefferson City Opera House Company of the par value of $2500, and that there was no other consideration whatever for said note; that the said stock was held and owned by Will J. Edwards, and that Edson L. Burch, acting- for and on behalf of himself and the plaintiff bank, persuaded and induced the defendant herein to sign the promissory note for the purpose of transferring to the defendant the nominal ownership of the said stock so held by the said Will J.
Other parts of said answer were struck out by the court. The purport of this part of the answer when analyzed is that it undertakes to contradict and vary the terms of the note in suit, and the attached writing placing the two shares of stock as security for the loan; and the further plea that defendant executed the note and attached writing without knowing the contents, etc.
The action of the court in striking out that part of said answer was eminently proper. The matters therein stated did not show such fraud as is referred to in Main v. Hall, 127 Mo. App. 713; Broyles v. Absher, 107 Mo. App. 168; Och v. Ry. Co., 130 Mo. 27. These cases refer to instances where the party was induced to sign the writing by a trick wherein he was made to believe that he was signing another and different paper. Defendant knew what he was signing and his effort is to contradict the writing itself and to
As that part of defendant’s answer on which the case was tried, not being sworn to, the execution of the note stood confessed. There was no plea of payment. The contention is that it was without consideration, but there is no fact set out showing 'that there was want of consideration. The admitted consideration was certain shares of stock in the Jefferson City Opera House Company, which it is alleged were merely assigned to defendant to be held by him nominally and not really, and that was the contract made at the time of the execution and transfer of said note. It is always in order to plead want of consideration as a defense to the enforcement of a contract. But defendant is not trying to allege want of consideration as such, He does not allege that the said capital stock which was the consideration for the execution of the note was without value, but that he did not receive them except nominally; and that he repudiates their ovTuership; that it was the understanding at the time that his ownership was to be merely nominal, and that the making of the note was for accommodation purposes only and that he was not to be liable thereon for any amount whatever. This is all against the letter of the contract and does not constitute any defense to the note. The plaintiff was entitled t'o a judgment on the pleadings, as well as on the pleadings and the evidence.
Affirmed.