Chicago Cottage Organ Co. v. Swartzell , 61 Mo. App. 490 ( 1895 )

Bond, J.

—This action was brought before a justice upon a promissory note for $136.10, dated June 10, 1891, and due three months thereafter. Two of the defendants, Swartzell and Morgan, set up as a defense that, when they signed the note, it was agreed between themselves, Browning, the principal maker, and one Teeples, the agent of the plaintiff, that the other defendants were the sureties of said Browning, and that one Darroch should sign the note as, cosurety before its delivery. There was a judgment for defendants before the justice, from which an appeal was taken to the -circuit court where the case was tried without a jury and a verdict and judgment given in favor of plaintiff, from which the present appeal is prosecuted.

On the trial there was evidence tending to establish the defense made, that the signatures other than that of defendant Browning to the note were made upon the agreement with the general agent of plaintiff, one Teeples, that Darroch should also sign the note before its delivery. It further appeared that the note was presented for signature by said agent to the various signers, and that delivery was made to him after the several defendants had signed under the foregoing agreement.

It is conceded by the learned counsel for appellants that, if the evidence shows a delivery of the note to the payee—as there is nothing on its face showing it to be incomplete, and no evidence that it was fraudulently obtained—evidence of the contemporaneous oral agreement under which the defendants signed is. inadmissible. It is, however, urged that the delivery under the circumstances shown in this case was not a delivery to the payee. That the person who presented the note for the successive signatures of defendants, and who took it after they respectively affixed their names, was the agent of the payee is conceded,- and there is no evidence in this record that he took the note in any other capacity. Hence, in legal effect, the delivery, after the several signatures of defendants, was a delivery to plaintiff, and, as the note is formal and complete on its face, parol evidence tending to contradict the liability of defendants, as therein stated, was inadmissible. Massmann v. Holscher, 49 Mo. 87; Henshaw v. Dutton, 59 Mo. loc. cit. 143; Jones v. Shaw, 67 Mo. loc. cit. 670; Woodson v. Ritchie, 36 Mo. App. 512. The result is that the trial judge did not err in refusing the instructions based on a contrary theory. The instructions asked by the defendants do not negative a delivery made by them to the plaintiff, or, what is substantially the same thing, to'the plaintiff’s agent. They simply rely on the fact that such delivery was conditional, which, under the'law as decided in the foregoing eases, is no defense. The judgment of the circuit court is affirmed.

Judge Eombatjeb concurs; Judge Biggs dissents.