81 Mo. App. 255 | Mo. Ct. App. | 1899
In August, 1896, one Cook negotiated for and purchased from the plaintiff a threshing outfit. The business was conducted through Goodsill, Cook’s relative, and who was the president and manager of the defendant Hardware Company at Grant City. The sale was concluded August 15,
“Eor value received I hereby guarantee the payment of the within note and interest three months after its maturity, or at any time thereafter, on demand of Minnesota Thresher Manufacturing Company, or order, hereby waiving notice, demand, protest, diligence in collecting and prejudice by renewals or extensions.
“Dated this 15th day of August, 1896.
“Grant City Lbr. & Hard. Co.
“A. G. Pt.”
■Cook made several payments on this note, aggregating about $190, but failing to pay the balance, plaintiff sued the defendant on the above guaranty.
In the trial of the case the circuit court, over plaintiff’s objection, permitted Goodsill, defendant’s manager, to testify, in effect, that a few days prior to the sale of the machine and the execution of ¡the written contract, and prior to the execution of the Cook notes and defendant’s written guaranty indorsed on the one first maturing, he (Goodsill) had a conversation with plaintiff’s agent at Kansas City wherein it was understood that defendant should guaranty the payment of said first note but with the condition or understanding that
It is an old and well established rule that no contemporaneous or antecedent verbal evidence can be used to add to, detract from, vary or modify the terms of a written contract. All prior or contemporaneous negotiations are treated as having been merged into the writing then or subsequently solemnly entered into by the parties. The very purpose of the writing is to make a lasting and permanent testimonial of the terms by which the parties intend to be bound — avoiding in the future all misunderstandings, defects of “slippery memory” or temptations to false swearing. In this case there seems to have been a clear departure from .this salutary rule of evidence. The action is based on a complete written contract, clear and explicit. The instrument, quoted in the foregoing statement, is in no sense clothed in dubious language. On its face it purports to be an absolute, unequivocal undertaking, whereby the defendant promised to stand good for the default of Oook, the maker of the note. Nor is there any question as to the sufficiency of the consideration. Eor value received the defendant “hereby guarantees the payment of the within note and interest three months after its maturity, or at any time thereafter, on demand of- the Minnesota Thresher Manufacturing Company or order, hereby waiving notice, demand, protest, diligence in collecting,” etc.
By the terms of this contract defendant pledged itself to answer for the default of the maker of the note. It agreed, absolutely and without condition, to pay the note and interest at any time three months after its maturity on demand of the plaintiff — waiving even any want of diligence on the part of the payee or holder in seeking its collection of the maker. But, under sanction of the trial court, the defendant-introduced oral evidence to vary and contradict the express terms of the contract; was allowed to prove that prior to the
It is contended, -however, by the learned counsel for defendant that the contract was verbal and entire and that the giving of the written guaranty was only a part thereof— that this writing was made as part performance of the main contract, etc.
In the first place we do not think the contract in relation to .the sale of the threshing outfit, and the defendant’s connection therewith, was evidenced by verbal agreement. It is true that preparatory to making the sale certain verbal negotiations were had, but when the contract was subsequently entered into its terms were reduced to writing. Cook, the purchaser, signed an order for the machine in which every detail relating to the outfit — size, quality, price, terms of sale, as well as the provision that defendant guaranty payment of the first instalment, was set forth. And in pursuance of said written contract Cook made the notes for the purchase money, executed the chattel mortgage and earnings contract, and the defendant in like manner, and in pursuance of the entire written contract, indorsed its guaranty on the back of the note first maturing. The guaranty then was made and entered into in pursuance of and in compliance with the terms of the main written contract.
All the cases seem to recognize the rule that the parol proof can not be allowed to contradict the terms of the writing —even though the instrument contains only a part of the entire contract. As for example, in Greening v. Steele, supra, it is said: “If there was, when the original contract was concluded, a parol contemporaneous agreement, independent of, and not inconsistent with, the one put in writing,
In our opinion then, the trial court erred in admitting the evidence relating to the so-called antecedent parol agreement had between the defendant’s president%nd plaintiff’s agent; erred also in giving defendant’s first instruction, quoted in the statement; and erred too in giving the instruction of its own motion which is copied in the abstract.
Judgment reversed and cause remanded.