127 Mo. 514 | Mo. | 1895
On March 8, 1891, the Kansas City Agricultural and Horticultural Pair Association, a corporation, was indebted in various amounts aggregating about the sum of $53,000. The company issued $75,000 of bonds, and executed a mortgage on all of its property to secure their payment. On March 8,1891, plaintiff loaned the company the sum of $53,000 and took its note therefor, and to secure its payment the com
At the time plaintiff loaned the $53,000 to the company, in addition to the $60,000 in bonds as collateral, the defendants executed to him the following guaranty:
“Whereas, at our request, J. J. Squier, of Kansas. City, Missouri, has loaned the Kansas City Agricultural and Horticultural Fair Association the sum of $53,000, for which he has taken the note of said association, due June 8, 1891, bearing interest from its date, to wit, March 8, 1891, at the rate of eight per cent, per annum,, and which said note is secured by a pledge of $60,000 of the bonds of said association heretofore issued, and which said bonds are seciired by a deed of trust on all the property of said association; and, whereas, according to the agreement under which said bonds are pledged with said Squier, he has power, under certain circumstances, to either sell said bonds or foreclose, or sell out under the deed of trust securing the same, in order to raise the money to pay his said note of $53,000 and interest, in case default is made in payment of the-same when due.
“Now, therefore, know all men, that we, the undersigned, in consideration of the premises, and in pursuance of the promises made by us heretofore to. said Squier, in order to induce him to make said loan, hereby bind ourselves, jointly and severally, unto the said J. J. Squier and his assigns, as follows:
“In witness whereof, we have hereunto set our hands and seals this eleventh day of March, 1891.
“J. C. Evans, [Seal]
“Geo. Sheidley, [Seal]
“Ed. H. Webster, [Seal]
“Geo. Holmes, [Seal]
“Patterson Stewart, [Seal]
“W. H. Town, [Seal]
“James H. Og-lebay, [Seal]
“Robt. McClintook, [Seal]
“Milton Welsh, [Seal]
“Bernard Corrigan, [Seal]
“Fred. S. Doggett. [Seal]”
The note to plaintiff was not paid at maturity, and • the $60,000 in bonds, held by him as collateral, were
The defendants set up in their answer that they are ready and willing to pay eleven twelfths (11-12) of this balance, but that they are unwilling to pay the other one-twelfth (1-12), for the reason that the plaintiff was equally liable with defendants for a portion of the indebtedness, and at the time the guaranty was made and the money loaned, agreed to bear his share, one twelfth of any deficiency that might remain after the sale of the bonds of the corporation, and that it was in pursuance of this agreement and upon this consideration that they executed the guaranty sued on.
At a trial had, judgment was rendered in favor of plaintiff for eleven twelfths of the amount remaining due on the note, from which judgment plaintiff appealed.
During the trial, defendants were permitted to prove, over the objection and exception of plaintiff, that prior to the execution of the contract, and during the negotiations, plaintiff refused to sign any writing, but verbally agreed with the defendants that, if there was any deficiency on the note after applying whatever might be realized from the $60,000 in bonds of the company, he would be responsible for his proportion of that amount; that is to say, one twelfth. In the admission .of this evidence, plaintiff contends that the court committed error.
It is an elementary principle of law that parol evidence, in the absence of fraud or mistake, is not admissible for the purpose of varying the terms of a written contract, and that the terms of such a contract
In all actions founded upon contract, where the defense is the want or failure of consideration, or where the purpose is to contradict a mere receipt for money, or to explain or contradict the consideration clause in a mortgage or deed, such evidence is admissible. Bank v. Aull, 80 Mo. 201; Baile v. Ins. Co., 73 Mo. 386; Hollocher v. Hollocher, 62 Mo. 267; McConnell v. Brayner, 63 Mo. 464; Fontaine v. Savings Institution, 57 Mo. 561; Altringer v. Capeheart, 68 Mo. 441; Brandt on Suretyship and Guaranty [1 Ed.], sec. 352.
The note executed to plaintiff by the fair association was an unconditional promise to pay plaintiff the sum of $53,000; and the written guaranty for the payment of whatever remained unpaid thereon after the application of the proceeds arising from a sale of, the collateral] bonds for $60,000 was alike unconditional, and the effect of this evidence was only to vary and change the terms of the written contract. It had no tendency whatever to show a want of consideration for the guaranty, but did show that plaintiff agreed, or promised some of the defendants, that he would pay his part, to wit, one twelfth of the amount remaining unpaid on, the note, if anything, after deducting the amount realized by him from the collaterals. The consideration for the guaranty as expressed therein was for the payment of the $53,000 note, and not any promise
Nor does the fact that plaintiff was indorser on some of the other notes with which the $53,000 borrowed from him by the association was paid change the law as herein announced.
For the error of the court in admitting the evidence objected to by plaintiff, and instructing the jury upon the same theory, the judgment is reversed and the cause remanded with directions to the trial court to enter up judgment in favor of plaintiff, and against defendant, for the full amount sued for.