23 Mo. App. 69 | Mo. Ct. App. | 1886
The well established rule is that oral testimony is inadmissible to vary or contradict the terms of a written instrument. In accordance with this rule, a note, which in its terms is an absolute and unconditional promise to pay the sum of money therein specified, cannot be varied by evidence of a prior or contemporaneous oral agreement that the note, in a certain contingency, was not to be paid. Smith's Adm'rs v. Thomas, 29 Mo. 310, 311 ; Henshaw v. Dutton, 59 Mo. 139 ; Jones v. Shaw, 67 Mo. 667 ; Ewing v. Clark, 76 Mo. 545 ; Gardner v. Matthews, 81 Mo. 627.
But it is not inconsistent with this rule to show by oral evidence a want, failure or fraud in the consideration of such a note. Smith's Adm'rs v. Thomas, supra.
According to the allegations of the answer, the original note was not owned by the deceased, R. B. Harwood, at the time of the execution of the notes in suit, he having assigned it to O. L. Houts. Had R. B. Harwood still owned the original note at the time of the execution of the notes in suit, the time of the payment of the original note would have been extended as a consequence of the execution of the notes in suit until the latter should have become due, and the said extension of time would have been a sufficient consideration to support the new notes ; and the terms of the new notes
But if R. B. Harwood did not own the original note at the time of the execution of the notes in suit, the execution of the latter notes would have had no bearing, whatever, upon the original note, except by reason of some agreement between the parties. If the allegations of the answer are true, there was no consideration whatever for the giving of the notes in suit except the -agreement set out in the answer. And in that case R. B. Harwood’s representative cannot recover on said notes. In other words, if R. B. Harwood gave no other consideration for the notes than the making of the agreement alleged in the answer, the notes in his hands were without consideration, and are, also, without consideration in the hands of his administrator.
The answer contained a good defence, a total want and failure of consideration. The court erred in not. permitting the defendants to prove said defence.
The judgment is reversed and the cause remanded.