167 Mo. App. 635 | Mo. Ct. App. | 1912
Lead Opinion
Action of replevin to recover possession, after conditions broken, of certain household furniture covered by a chattel mortgage, the plaintiff claiming as endorsee of the notes alleged to be secured by the mortgage. The plaintiff had judgment
It is conceded that not only did defendants execute and deliver said chattel mortgage but they also executed and delivered a deed of trust in the nature of a mortgage conveying defendants’ home as security for the same notes. The defendants set up in their answer as a defense, and endeavored and- offered to prove at the trial, that the only primary or permanent security for said notes was said deed of trust upon the real estate, the same being and intended to be a third deed of trust — that is, subject to a first deed of trust for $5000 and a second for $3000 — and that the chattel mortgage was given tentatively or temporarily, under an agreement between plaintiff and defendants that if, upon examination of the title to said real estate, the same should be found to be good and free from any incumbrances other than the first and second mortgages, the chattel mortgage would be cancelled and held for naught; that upon examination of the title to said real estate the same was found to be good, save as aforesaid, and the plaintiff became bound to cancel said chattel mortgage.
It developing at the trial, however, that such agreement was not in writing but rested in parol, and had been made prior to, or contemporaneously with, the execution and delivery of said chattel mortgage, the trial court rejected all such proof and struck out such defense from the answer on .the ground that it was an improper attempt to impeach the written contract between the parties. The defendants duly excepted and assign such rejection of proof as reversible error. The assignment must be sustained, for the trial court clearly erred.
Parol evidence is admissible to show the purpose for which a mortgage was executed. [Jones on Chattel Mortgages, sec. 90.] Thus, it was held that it might
But plaintiff contends that the judgment should not be reversed on account of the error “because undisputed evidence shows that there was a fourth deed of trust and two judgments, one amounting to $1800; in addition to the liens that the appellants claim were against the property.” The weakness of this contention lies in the fact that such evidence consists of the plaintiff’s testimony alone and it is fair to conclude that it is “undisputed” only because the trial court’s ruling and order forbade defendants’ disputing it and struck out the defense, which would make such evidence relevant. That defendants’ counsel considered such ruling final and binding on him is shown by his attitude thereafter in cautioning his witness not to volunteer testimony contrary to it.
As a further defense defendants alleged in substance that about a year after the chattel mortgage was given, the real estate was sold by the trustee under the second deed of trust and the plaintiff bought it in, having first agreed, however, with the defendants that he would buy it in, and hold and dispose of it as trustee for himself and for them; that subsequently he sold it for a price more than sufficient to satisfy all liens on the property and repay all plaintiff’s loans and advancements, including that claimed to be secured by the chattel mortgage. It is sufficient to say of this that the evidence for and against this defense consisted en
The petition described the notes secured by the chattel mortgage as being one note for $1055, payable twelve months after date, and two notes each for $42.65, payable six and twelve months after date. Upon the trial, however, the plaintiff offered in evidence one note fox eleven hundred dollars payable twelve months after date with a credit for forty-five dollars indorsed thereon and two notes each for forty-four dollars payable six and twelve months after date, with a credit on each of them of $1.35, Defendants objected to the admission of said notes in evidence saying they were not the notes described in the petition, and assign as error the action of the trial court in overruling such objection. They now assert that “it amounted to a failure of proof and not a mere variance.” The point might be ruled against the defendants for the sole reason that it was not urged in the motion for new trial, either that the court erred in admitting evidence, or that there was a failure of proof (Bouillon v. Laclede Gaslight Co., 165 Mo. App. 320, 147 S. W. 1107; Fox v. Young, 22 Mo. App. 386 ; Putnam v. Hannibal & St. J. R. R. Co., 79 Mo. 388); but as the question may otherwise be raised again on the trial anew we will settle it now on its merits.
Defendants base their contention that there was a failure of proof on the theory that the plaintiff alleged an original contract and was allowed to prove an original contract with a modification. The pleading and proof do not sustain that theory. The evidence in this respect discloses that on November 14, 1907, defendants were being pressed for immediate payment by
Moreover, even had there been a discrepancy between the allegation and the proof as to the amount of the notes, there would have been nothing more than a mere variance and not a failure of proof. To constitute a failure of proof, the allegations of the cause of action must be unproved, not in some particular only,
For the error in rejecting testimony tending to show the purpose for which the chattel mortgage was executed, the judgment is reversed and the cause remanded.
Concurrence Opinion
CONCURRING OPINION.
I concur in reversal on the ground that the trial court erred in excluding the parol evidence offered. As I understand it, that evidence went to prove failure or lack of consideration, either of which may be proved by parol; it did not go to alter or vary the terms of the written contract, neither of which can be proved by parol.