182 Mo. App. 676 | Mo. Ct. App. | 1914
(after stating the facts). — The above statement is the most favorable view of the case to plaintiff, for there is an abundance of contradictory evidence in the record introduced on the part of de-. fendant. Defendant insists that he at no time became a partner with plaintiff in the matter of wrecking the buildings, but merely undertook to aid him upon his urgent solicitation to do so. Defendant says that he advanced the $5000 certified check to plaintiff as a loan and took his note therefor, payable on demand, both parties expecting that the check would be withdrawn from deposit with the city authorities in a few days, and returned to defendant. Defendant’s bookkeeper, "Wishmeyer, says substantially the same about this transaction and testifies that he drew up the note, which plaintiff signed, on the day of its date, September 14, two days after defendant had gone to Colorado, Wishmeyer says, too, and defendant testifies to the same effect, that though he was the bookkeeper of the Kellermann Contracting Company, he kept books for plaintiff as well, under an agreement by which plaintiff was to pay him for such service, and that he in no manner represented defendant while so doing. Defendant explains the matter of advancing $2400 to enable plaintiff to pay the $4900 note on-which Kellermann was security, saying that, unless he
Plaintiff requested the court to instruct the jury that if he signed this note under the circumstances above set forth, believing it was a receipt at the time, then the finding should be for him with respect to that matter. The court refused this instruction, and it is urged such was error, for it is said on the evidence the question is one of fact as to whether or not plaintiff had given defendant his note or merely signed a receipt for the $5000 cheek. But it is clear enough that the court did not err in refusing this instruction, for the evidence is wholly insufficient under the decisions in this State to render the question concerning it one for the jury. There is nothing in the record to suggest that plaintiff was unlearned or not amply able to care for himself in transactions of the character here involved. Indeed, he appears to be an active business man, conducting extensive operations as a contractor and reads and writes as business men usually do. The rule is, that unless fraud is practiced upon him, a person who signs a contract is conclusively pre
But it is true that if a party is induced, through fraud and deceit, to sign a promissory note when he believed he was signing a receipt only, relief may be afforded to him either in law or in equity. Where one is induced by another to rely upon his reading the contract to him before signing, and .such person misreads it, with a view to deceive, and thus obtains his signature to a document different from that intended, relief may be had on such showing alone. But this proceeds from the fact that such á betrayal of confidence is both so revolting and so infrequent that it is not likely to be anticipated by the average man. [See Tait v. Locke, 130 Mo. App. 273, 282, 109 S. W. 105; Carroll v. Peak, 156 Mo. App. 446, 136 S. W. 961.]
However, cases of that character are not identical with those where nothing more appears than a mere misrepresentation of the contents or character of a paper to which another affixes his signature. In cases of the character last referred to, something more must appear to invalidate the contract than that the party merely signed the note without reading on being told by the party presenting it that it was a receipt. When it appears that the person so signing the note is amply able to read and understand and is familiar with business transactions generally, he may not be relieved of an obligation on the grounds of fraud or misrepresentation, unless something more appears to mislead or trick him than the mere fact the party presenting the note said it was a receipt. Touching such matters Chancellor Kent has well said: “The common law affords to everyone reasonable protection against fraud in dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly or a careless indifference to the ordi
The court did not err in refusing to submit to the jury the matter of the alleged imposition upon plaintiff, in obtaining his signature to the note, when he supposed it was a mere receipt, for the reason the evidence touching this matter is insufficient to create an issue of fact concerning it. In this view it was competent for the court to treat the note as a note at law, executed by plaintiff to defendant, for it admittedly bears his signature and purports on its face to be a promissory note in the usual form.
There is some evidence in the record tending to prove that plaintiff here sued the Kellermann Contracting Company, of which defendant is secretary, for a balance said to be due plaintiff on a contract for improving Dickson street, and that he prevailed in that action. It appears, too, that defendant assigned the $5000 note to the Kellermann Contracting Company some months after the credits of $1100 and $2000 were entered thereon, and subsequently the Kellermann Contracting Company assigned a note back to defendant. It is said, though not proved in the case,' that the Kellermann Contracting Company interposed a counterclaim on this $5000 note in plaintiff’s suit against it and that, the jury found the issue with respect of it in favor of
The court instructed the jury that the burden of proof rested upon plaintiff, and it is urged this was error. But we are not so persuaded. By his petition plaintiff stated that on the 22nd day of May, 1909, at the request of defendant, he loaned to him the sum of $2000 which sum defendant agreed and promised to pay. The smt appears to proceed on an express contract to repay the money as if it were a loan and because of the breach of the agreement to do so. Obviously, in such circumstances, the burden of proof lies with the plaintiff. [See McKee v. Verdin, 96 Mo. App. 268, 70 S. W. 154.] But it is argued that because defendant concedes in his evidence that he received the $2000 from plaintiff, but says it was paid to him on the note, the burden was thereby sMfted to him with respect to tMs matter. This suggestion is without influence in the case, for plaintiff expressly declares upon a loan to defendant and seeks to recover because of his failure to observe the obligation to repay it. Moreover, though the burden of the evidence may shift from side to side in the ease, as that given by the parties appears to establish or rebut a prima-facie showing, the burden of proof remains throughout on the party asserting the affirmative of the proposition to be sustained. [See Berger v. Storage & Commission Co., 136 Mo. App. 36, 42, 116 S. W. 444.]
It would unduly extend the opiMon to discuss separately all of the instructions refused but they have all been considered, and we see no reversible error with respect to the rulings thereon. The same is true as to the rulings on the evidence. The judgment should be affirmed. It is so ordered.