81 Mo. 68 | Mo. | 1883
The plaintiff sued on a note dated Eeb
The petition is in the usual form. The answer admits the execution of tire note, and sets up a defense going to show that it was obtained by fraudulent representations, and that there had been, before suit brought, an entire fail-' ure of consideittion. The plaintiff replied denying this defense. The cause was tried by the court, and judgment was rendered in favor of plaintiff in the sum of $419.29.
No instructions were asked or given. The defendant contends that the judgment is against the evidence, which is preserved in a bill of exceptions, along with the motion for a new trial, urging this point. The plaintiff insists that there is sufficient evidence to support the judgment. It, therefore, becomes necessary for us to examine the testimony, which substantially corresponds with the facts pleaded by defendant.
The testimony rests entirely upon the defendant’s story, detailed upon the witness-stand, along with one or two portions of documentary proof.
The defendant testifies that the plaintiff, in consideration of the note sued on, gave him three promissory notes against one John Coopei’, amounting in the aggregate to $160, dated October 26th, 1863, bearing ten per cent interest from date, purporting to be secured by a deed of trust on a cex'tain parcel of land, which she had conveyed to said Cooper. At the time of the transaction, the defendant took from the plaintiff a receipt or memorandum, which reads as follows: “Received February 17th, 1873, from T. J. Brown oue note calling for $245.73, dated February 17th, 1873, due twenty days after date, for which note I sold him two notes on John Cooper and one certain abstract of a note on said Cooper, and the said Brown will proceed to bi’ing suit on said notes, in order to foreclose a deed of mortgage given by Cooper to secure the payment of said notes, and I agree with the said Brown that if he fails to get a
The learned and confident counsel of plaintiff thinks there is sufficient evidence hereto support the judgment.
The import of the memorandum is, that defendant was to pay on the note in suit only so much as he obtained judgment for in the contemplated foreclosure suit on the Cooper notes. And as he has failed to obtain any such judgment, the thing being impossible from the beginning, although not so known to him, there is an entire failure of consideration, which works a discharge of his obligation on the note in suit. His obligation on the note in suit
My conclusion is, that there was a failure of consideration as represented and taken at the time of the exchange; also, that according to the terms of the memorandum pleaded, the defendant is entitled to a release or discharge upon the note in suit.
Accordingly, the judgment is reversed and cause remanded.