Wright v. Vetter , 54 Mo. App. 384 ( 1893 )

Ellison, J.

— This action is on a promissory note. Judgment of the trial court was for defendant. The defense presented by defendant was that he gave the note with two others in settlement of a certain other note on which it was represented to him he was surety. He was not in fact a surety on the other note. Therefore the consideration failed and defendant is not liable.

But shortly after defendant executed the note in suit, the note on which he supposed he was surety and which was to be surrendered to him was sent to him and has remained in his possession. From the fact that he did not return the note, or offer to return it, immediately after he discovered he had not signed it, it is urged that he cannot maintain this defense, notwithstanding he offered or tendered it back in his answer, the argument being that before he can be permitted to urge his defense he must place the other party in statu quo by returning the other note. Cahn v. Reid, 18 Mo. App. 116, and other cases are cited in support of this contention. Our opinion is that these cases are not applicable. There was nothing in the nature of a contract in this case requiring rescission and return of property obtained under a contract. The note was neither sold nor pledged to defendant. There was no property right bestowed upon him at his election. The sole question made was as to the consideration of the note. If the defendant executed the note in suit under the belief that he was liable as surety on the other note, and for that reason there was no consideration for his act, and it can make no difference in the result whether he came to believe he. was surety by reason of fraudulent representations or otherwise, there would still be no consideration.

The answer set up that defendant was led to believe he was surety on the other note by reason of the false and fraudulent representations of plaintiff’s agent. But the court substantially instructed the jury, omitting the question of fraud, that if the note in suit was given by defendant under the belief that he was surety when he was not, and that it was given for the sole purpose of taking up the note upon which he thought he was surety, plaintiff could not recover. The complaint made is that this' instruction omitted the question of fraud alleged in the answer. We cannot see how plaintiff is harmed by this. If defendant executed the note only for the reason that he believed he was surety on the original note, when in truth he was not, it is no consequence whether the 'belief was caused by fraudulent or innocent representations or no representations at all. In our opinion plaintiff’s appeal is based upon a theory not applicable to the facts of the case.

The judgment will be affirmed.

All concur.