Broyles v. Absher , 107 Mo. App. 168 ( 1904 )

REYBURN, J.

(after stating the facts). — Prom the above synopsis of the pleadings and the proof, it is manifest- that plaintiff relied on no derivative title to the instrument, and the testimony of the numerous witnesses combating her explanation of the possession of the note, fortified by her own irreconcilable testimony at former hearing of the case, together with its allowance as an item of credit in her claim against her father’s estate, establish beyond question that the note was among her father’s assets at time of his demise and passed into the possession of his administrator as part of his estate. The proof is alsp overwhelming that the money borrowed was the property of the father and the note intended to be drawn to him, although in deference to the prevailing rule forbidding an appellate court to consider the weight of the evidence, we might hesitate to reverse the case solely because the judgment is not supported by the preponderance of the evidence. In the light of the fact that the court struck out those portions of the answer pleading the procurement of the note by fraud in the wrongful substitution of the plaintiff’s name as payee in lieu of that of the lender of the money, and the trial judge would seem to have yielded to the assumption that such defense was at variance with the plea of non est factwm, set up earlier in the avnswer, although the court, in its declaration of the principles of law, recognized that such plea was not repugnant to the challenge of plaintiff’s ownership of the instrument. While the legal presumption obtains that the party attaching his signature to the written embodiment of the contract, has read it as he is obligated to do, and is acquainted with its contents, yet between the original parties to the instrument, defendant may plead and establish by proper proof, that through his illiteracy by the misreading of the paper to him or other fraudulent device, an instrument other than the one understood and intended by him to be executed was fraudulently substituted and his signature thereto wrongfully secured. Corby v. Weddle, 57 Mo. 452; Law v. Crawford, 67 Mo. App. 150; Kingman v. Shawley, 61 Mo. App. 54. Such evidence is not addressed in variation of a written instrument, but assails its actual execution and is admissible under a plea of non est factum. Such is the legal rule prevailing even respecting instruments under seal thereby importing a legal consideration. ‘ ‘ Fraud in the execution of the instrument has always been admitted in a court of law, as where it has been misread or some other fraud or imposition has been practiced upon the party in procuring his signature and seal.” Hartshorn v. Day, 19 How. 223, quoted approvingly in Och v. Railway, 130 Mo. l. c. 41. That such evidence of fraud in relation to the execution of the instrument should be received, has been the rule approved in this State from an early date in Burrows v. Alter, 7 Mo. 424, and such is the rule recognized at this time, alike by the Supreme Court and this court. Och v. Railway, supra; Van Ravenswaay v. Ins. Co., 89 Mo. App. 73; Phoenix Ins. Co. v. Owens, 81 Mo. App. 201; Wright v. McPike, 70 Mo. 175; Nichols v. Young, 69 Mo. App. 448; Beck & Co. v. Obers, 54 Mo. App. 240. See also George v. Tate, 102 U. S. 564. The defenses sought to be interposed by the amended answer were not inconsistent with each other but in entire harmony; for the proof appropriate to sustain one defense did not tend to disprove the other. If the plea of non est factum involved the actual signature of the paper, which is at best debatable (Hart v. Wire Co., 91 Mo. l. c. 422), such denial would be overcome by the general tenor of the answer conceding the genuineness of the name. Price v. Morning Star, etc., Co., 83 Mo. App. 470. The paragraphs eliminated from appellant’s defense on motion of respondent constituted adequate and valid legal answer to the plaintiff’s cause of action, and proof thereof should have been admitted; the theory of the trial court as gathered from the declarations of law was erroneous and the errors indicated necessitate a retrial. Judgment is accordingly reversed and the cause remanded for trial not inconsistent with the views herein set forth.

Bland, P. J., and Goode, J., concur.