161 Mo. App. 242 | Mo. Ct. App. | 1912
Plaintiff brought this suit in a justice court upon a negotiable promissory note for $71.25, executed and delivered to plaintiff by defendants October 7, 1909, and by its terms payable sixty days after date, together with interest from date at six per cent per annum. The execution and delivery of the note are admitted and the sole defense interposed by defendants, both in the justice court and in the circuit court where the cause was taken by appeal, was a failure of consideration. This issue was
The defendants are husband and wife. In April, 1909, they purchased a residence of plaintiff for $5,250 and a deed was duly executed and delivered by plaintiff conveying the property to Mrs, Leavel, subject to a deed of trust of $2,750. The remainder of the purchase price was paid as follows: Mrs. Leavel paid $500 in cash at the delivery of the deed and executed and delivered to plaintiff her three promissory notes, two for $750 each and one for $500', payable respectively in one, two and three years after date and all bearing interest from date. Defendants secured the payment of these notes by executing and delivering to plaintiff a second deed of trust on the property.
Defendants contend, and their testimony supports their claim, that as a part of the transaction just recited, it was orally agreed by plaintiff, who was the payee of the second mortgage notes, that no interest would be charged on them if defendants should pay them all in six months after their date. Further defendants contend that plaintiff orally agreed at his own expense to make some necessary repairs on the house and in consideration of that agreement, defendants purchased of plaintiff and had transferred to Mrs. Leavel a policy of fire insurance which plaintiff had procured and paid for. The rmearned premium was $37.10 and Mr. Leavel gave plaintiff his check for this amount. The check was not presented for payment by plaintiff to the bank on which it was drawn for the reason, so defendants say, that plaintiff agreed he would not cash it until he had completed the repairs. Plaintiff denies that the making of the repairs constituted any part of the consideration of the check and states that it was not presented for payment on the request of Mr. Leavel who stated, when he gave the check, that he had no money in the bank.
Plaintiff contends in his testimony that the only consideration for the note was the two items of insurance and interest and that the subject of the repairs was not mentioned as an element in the transaction. The repairs were not made and when the note fell due plaintiff demanded payment and, the demand being refused, brought this suit. There is. no evidence in the record tending to show the value of the repairs in controversy.
The rule that antecedent and contemporaneous oral agreements relating to the subject-matter of a written contract are merged in the written contract and that evidence of such agreements will not be received to contradict or alter the terms of the written
“Therefore, except in cases of fraud or mistake, or total or partial failure of consideration, parol evidence of a verbal agreement made at the time of or prior to, the execution of the note, is not to be received to qualify, contradict, vary, subtract from- or add to the terms of a note which is absolute on its face.” [Kessler v. Clayes, 147 Mo. App. l. c. 99, and cases cited.]
It is not claimed by defendants that there was any fraud or mistake that induced the execution of the note nor have they interposed a counter-claim based on the alleged breach of plaintiff’s promise to repair which they claim was the principal consideration. Their sole defense on which they prevailed in the trial court is a, total failure of consideration.
“In this state the rule that written contracts cannot be varied by parol has never been held to prevent inquiry into the consideration of such contract so as to show a full or partial failure'of consideration.” [Gaar, Scott & Co. v. Hill, 113 Mo. App. l. c. 13.] Indeed this exception to the general rule has conclusive statutory support. [Sec. 1974, R. S. 1909.].
Defendants were not precluded from offering parol evidence to show a total or partial failure of consideration. Instead of adducing such evidence their own proof conclusively establishes the fact that there was not even a partial failure of consideration. They received and still retained their insurance policy for which they had not paid plaintiff the agreed price. In addition to the discharge of this obligation the note in controversy also settled the demand plaintiff was pressing for the accrued interest on the mortgage notes. It is true defendants had been denying
A promise is good either as a full or partial consideration of a note and how may it be said in a case where neither fraud nor mistake is suggested, that the failure of the promisor to fulfill a promise constituting such partial consideration amounts in law to a total failure of consideration? If plaintiff made the promise to repair and broke it as alleged by defendants, such breach gave them a cause in damages against plaintiff, which they might have interposed in this action as a counterclaim, but it does not support the defense of no consideration.
The judgment is reversed and the cause remanded.