147 Mo. App. 88 | Mo. Ct. App. | 1910
This is a suit on a promissory note. The trial was had before the court without a jury. After taking the case under advisement, judgment was given for defendant, and the plaintiff appeals. The plaintiff filed the instrument sued upon as a demand against the estate of J. D. Lucas, deceased, in the probate court of St. Louis county. It was allowed and the estate appealed to the circuit court. Afterwards a change of venue was awarded to the circuit court of St. Charles county from whence comes the present appeal.
The instrument sued upon is as follows:
“Bridgeton, Mo., Nov. 28, 1902.
Good for $1000, one thousand dollars, for ten shares Kinloch Jockey Club stock surrendered to the undersigned, J. D. Lucas, by the owner of said stock, J. Kessler and for which I am liable.
Joseph D. Lucas.'’'’
It is to be noted that the instrument bears date prior to the enactment of our negotiable instrument
We are unable to say vpon what theory the court gave judgment for the defendant. No declarations of law were given am3 we are therefore unaided by anything in the rp-'Ca'd indicating the views of the court as to the°£ the case. It is true the court refused one rawest by the plaintiff, but as this declaration failed fr nypothesize all of the relevant facts in proof, it is of course presumed to have been refused for that reason. Although it is not clear on what theory the court gave judgment for the defendant, its judgment is sought to be sustained here on the proposition that the instrument sued upon is not a promissory note. If such is the theory of the judgment, then we believe it to be erroneous. On the other hand, if the judgment of the court was given for defendant on the theory that there was a failure of consideration for the note, then we believe it may be sustained. The argument advanced by the defendant is to the effect that the instrument in suit is not a note but is rather merely a receipt which the deceased executed to the plaintiff for ten shares of stock in the Kinloch Jockey Club. It is said the instrument is ambiguous in its terms and therefore it is proper to receive parol testimony showing the situation of the parties and the circumstances surrounding them, to the end of elucidating the intention in that behalf. Generally speaking, if the intention of the parties sought to be set forth in a written contract is not clear because of ambiguous language used therein, the ambiguity may be removed and the intention of the parties clarified by parol testimony to the extent mentioned. In other words, while direct evidence as to the intention is incompentent, it is always competent to receive parol testimony to the end of showing the situation of the parties, the surrounding circumstances and the relation which the words of the writing may bear to facts which constitute the subject-matter of the contract. [Ellison
Be this as it may, except in cases w^re from fraud, mistake or illegality the' instrument has nt+ acquired original force as a contract, parol evidence is inadmissible to vary, contradict, add to or subtract from o,e terms of a written instrument. The rule proceeds upon the presumption that the parties have placed their entire engagement in writing, therefore, if the instrument imports a legal obligation with certainty, it -alone shall be permitted to give evidence as to the terms of the agreement. [Tracy v. Union Iron Works Co., 104 Mo. 193, 16 S. W. 203; Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25, 84 S. W. 76; Greenleaf on Evidence, sec. 275.] Under this rule, it is clear that if the instrument sued upon is a promissory note, then parol testimony is incompetent to destroy its obligation as such and show it to be a receipt instead. As to the general proposition that a promissory note may not be shown by parol to have been intended as a mere receipt, see the following authorities in point: Billings v. Billings, 10 Cush. Mass. 178; Dickson v. Harris, 60 Ia. 727; Daniels on Negotiable Instruments (5 Ed.), sec. 80. But it is said the instrument is not a promissory note for the reason it contained no promise to pay. It is sufficient if such a promise is either expressed in words or is raised by the law as a necessary implication on an acknowledgment of indebtedness therein contained. [Daniels on Negotiable Instruments, sec. 37.] There are numerous cases in the books of this State and elsewhere to the effect that mere due bills are promissory notes within the meaning of the law even though no promise to pay the indebtedness acknowledged to be due is expressed in words therein. See the following: McGowen v. West, 7 Mo. 569; Finney v. Shirley, 7 Mo. 42; Brady
In Franklin v. March, 6 N. H. 364, the instrument sued upon and held to be a note was as follows: “October 19, 1830. Good to Eobert Cochran, or order, for $30 borrowed money. Joseph W. March,” it appearing that it was founded upon a sufficient consideration, borrowed money, the words, “Good to Eobert Cochran” were therefore said to clearly signify an acknowledgment of indebtedness in the amount mentioned and the instrument declared a promissory note by an application of the principle that the law implies a promise to pay the indebtedness thus acknowledged.
In Hussey v. Winslow, 59 Me. 170, the instrument sued upon was as follows: “Nobleboro, October 4,1869. Nathaniel O. Winslow, Cr. By labor 16 3-4 days at $4.00 per day, $67. Good to bearer, Wm. Vannah.” The instrument was held to be a promissory note. It appearing the consideration was for 16 3-4 days’ labor at $4. per day amounting in all to $67, the court declared the words, “Good to bearer” in this connection clearly indicated an acknowledgment of indebtedness in the amount mentioned and that inasmuch as the indebtedness was acknowledged, the law raised or implied the promise to pay the same.
It cannot be denied that on principle the law enters as a silent factor into every contract and the parties essentially assume and enter into mutual obligations with this in mind. Indeed, what is implied in an express
The instrument in suit reads: “Bridgeton, Mo., Nov. 28, 1902. Good for $1000, one thousand dollars, for ten shares Kinloch Jockey Club stock surrendered to the undersigned, J. D. Lucas, by the owner of said stock, J. Kessler, and for which I am liable. Joseph D. Lucas.” It will be observed that it expresses the consideration for which it was given, that is, ten shares of Kinloch Jockey Club stock, surrendered to the maker of the obligation. It is true neither of the words, “sold,” “purchased” nor “assigned” is employed. However, such is not essential to a note. Be this as it may, the word, “surrendered” in a sense involves the idea of transfer of title. The Supreme Court of the United States said in the case of Evans v. United States, 153 U. S. 584, 591, “Indeed, the word ‘surrendered’ carries with it something more than bare delivery, and indicates a transfer of title as well as of possession.” Bouvier’s Law Dictionary, in treating- of the word “surrendered” as applicable to estates in real property, among other things, says a surrender immediately divests the estate of the surren-deror and vests it in the surrenderee. Anderson’s Law Dictionary, among other things, says the word “surrender” means to give up or make over. The Standard Dictionary defines the word “surrender” to mean to relinquish, as to surrender a right or privilege and gives as one of it synonyms of the word, “alienate,” which word it says means to make over to another as the title or right. It appearing on the face of the instrument that the thousand dollars mentioned therein is for ten shares of stock in the Kinloch Jockey Club, surrendered by J. Kessler, the owner, to J. D. Lucas, the maker of the obligation, the result is, if we give the word “surrendered” the full meaning it imports, that according to
The essential elements of a promissory note are: First, that it must be in writing; second, it must contain, either expressed or implied, a promise to pay; third, the promise must be for the payment of a sum certain of money absolutely and at all events; fourth, the promise must be unencumbered with collateral agreements to do something else; and fifth, the instrument must indicate with certainty the parties to the contract. And under the old law, it was essential that it be not sealed. [4 Am. and Eng. Ency. Law, (2 Ed.), 81.] The instrument before us presents each and all of the elements mentioned. As to the identity of the payee, it is sufficient if the note discloses from whom the consideration was received. In such circumstances, the promise is interpreted to be a promise to pay him from whom the consideration moved. [Story on Bails and Notes, sec. 36; Green v. Davis, 4 B. & C. 235; Hussey v. Winslow, 59 Me. 170, 172.] It appearing that the consideration recited in the note moved from J. Kessler, the owner, of the stock, for which the indebtedness is acknowledged, the law implies and interprets the promise to him.
Although the concluding words of the instrument “and for which I am liable” are of doubtful import and seem in a measure to relate back and refer to the stock as though Mr. Lucas acknowledged himself to be liable
Of' course, the instrument is not a negotiable note, for the reason it contains no Avords of negotiability. [E. S. 1899, sec. 457; Bailey v. Smock, 61 Mo. 213; Taylor v. Newman, 77 Mo. 257; International Bank v. German Bank, 3 Mo. App. 362, 365.] However this may be in the judgment of the law, it is a promissory note and as such is entitled to the prerogatives and attributes incident to such obligations.
Besides the force of the general rule above referred to which precludes the reception of parol testimony to vary, contradict, add to, or subtract from, the terms of a written instrument generally, the principle is especially pertinent to promissory notes for the reason the law merchant affords a sort of special sanctity to these instruments. Therefore, except in cases of fraud or mistake or illegality, or total or partial failure Of consideration, parol evidence of a verbal agreement made
In affirmance of this doctrine, the right to contradict or vary the terms of a note has been denied under varying circumstances in many cases. Thus, where a note is payable on demand, it cannot be shown by verbal testimony that it was agreed it should not be paid until after the decease of the testator. [Woodbridge v. Spooner, 3 B. & Ald. 233; Graves v. Clark, 6 Blackf. 183.] Nor until after the sale of the maker’s estate. [Getto v. Binkert, 55 Ks. 617, 40 Pac. 925; Free v. Hawkins, 8 Taunt, 92; 1 J. B. Moore, 535.] The rule forbids, too, the showing that a note in which no time for payment is expressed and is therefore constructively payable on demand, was to be paid at a specified time. [Thompson v. Ketcham, 8 Johns, 189.] Nor will the maker be permitted to show by parol that the note was given as an indemnity against certain claims. [Ridout v. Bristow, 1 Cromp. & J. 231.] It likewise precludes a showing by parol that the amount imomised was to be paid only on condition that an endowment fund of $50,000 was raised before a certain date. [Trustees of Christian University v. Hoffman, 95 Mo. App. 488, 69 S. W. 474.] And as before stated, parol evidence is not admissible to contradict or vary the terms of the note by showing that the parties intended a receipt instead. [Billings v. Billings, 10 Cush. (Mass.),
However, the rule of law above stated does not obtain with respect to such recitals in the note as pertain to the consideration on which it is founded. In other words, the matter of consideration is always open between the immediate parties to the instrument, as here, to contradiction. The want or illegality of consideration may be proved by parol to show that the agreement is not binding and valid in law to the full extent indicated therein. [Greenleaf on Evidence, secs. 284, 304; 4 Am. and Eng. Ency. Law (2 Ed.), secs. 196, 199, 200; Hacker v. Brown, 81 Mo. 68; Daniels on Negotiable Instruments, (5 Ed.), sec. 81a.] Our statute, section 645 Revised Statutes 1899, pointedly provides that whenever a written contract is the foundation of an
Although the evidence in the record was introduced for the purpose of showing the note was a receipt instead, it tends, with great force, to prove that the deceased maker, Mr. Lucas, actually received no consideration whatever therefor. As stated, we are unable to discern the precise ground upon which the judgment was given for defendant, but, in the absence of erroneous dec
In answer to the suggestion that in the former part of the opinion we have treated the word “surrendered”
We believe there is substantial evidence in the record tending to support the judgment on the theory that there was no consideration given for the note, for it sufficiently appears that the title in the shares of stock remained in the plaintiff.
The judgment should be affirmed. It is so ordered.