13 Mo. 529 | Mo. | 1850
delivered the opinion of the court.
This was an action of assumpsit brought by Spalding, the defendant in error in the St. Louis court of common pleas, against Isaac S. Smyth, on a bill of exchange drawn by said Smyth on Johnstone, Dryer & Trowbridge, for six hundred and sixty-three dollars and fifty cents, payable four months after date, to Whittemore & Cutter or order, which was endorsed by said Whittemore & Cutter to Josiah Spalding, (the plaintiíF ) or order. The bill of exchange was accepted by said Johnstone, Dryer & Trowbridge, but was afterwards protested for nonpayment.
On the trial below, the defendant having plead the general issue, it was admitted that when the said bill of exchange which was given in evidence by the plaintiff below, was so given in evidence, the defendant below admitted due notice of ’the dishonor of said bill of exchange for non-payment; also admitted due acceptance by the drawees as well as presentment and protest for non-payment; also admitted the endorsement of said Whittemore and Cutter on said draft to the plaintiff.
The plaintiff then admitted that he was only acting in the suit for Whittemore and Cutter, and agreed that the defendant might set up any legal defence in this suit, as if the same was in the name of Whit-temore & Cutter as plaintiffs.
Thereupon the defendant.offered to prove, that the defendant at the time of the drawing of said bill of exchange was the clerk or agent of Johnstone, Dryer & Trowbridge, and was in no way interested in the goods purchased for said Johnstone, Dryer & Trowbridge, and for the payment of which said bill of exchange was given, and that Whittemore & Cutter, the payees in said draft, knew at the time of said agency, and gave credits to said Jonstone, Dryer and Trowbridge, and not to said de
The jury found a verdict for the plaintiff; motion made by defendant below to set aside the verdict and grant him a new trial — overruled— excepted to — and the defendant below brings the case before this court by writ of error.
The only question before us is as to the propriety of the court’s exclusion of the testimony on the part of' the defendant.
The authorities cited by the counsel for the defendant in error, in our opinion, sustain and justify the action of the court below.
** It would be allowing the maker of a written, plain and unambiguous j contract materially to change and alter it by parol evidence. The j drawer of this bill of exchange has made himself personally and indi- / vidually liable by the manner of drawing and signing it, and we hold it / better for the interests of commerce, and more compatible with the principles of the law regulating evidence to sustain and enforce his liability, than to suffer any parol proof to be given tending to explain it away or destroy it. He might have subscribed his name as agent or * clerk at first; but he thought otherwise, and acted as an individual on ] Ms own responsibility. Lethim therefore abide by it. We deem it not \ necessary again to cite the authorities. We refer to the argument of i the counsel for defendant in error, and to the authorities cited to sus- \ tain his point. We are satisfied with the ruling of the court below ; its judgment will be therefore affirmed.