Gardner v. Mathews

Norton, J. This cause is before us on appeal from the judgment of the St. Louis court of appeals, reversing the judgment of the circuit court of the city of St. Louis, and the appeal involves the question whether an accommodation indorser of a negotiable note, who after demand, protest and notice pays the note to the holder, can maintain an action to recover back by way of damages the amount so paid, basing his right to recover upon an alleged oral contract made at the time of the indorsement, that if, on the maturity of the note, the maker would give a new note secured by deed of trust on certain real estate, the note so endorsed was not to be paid by the indorser, but was to be surrendered to him for cancellation. The court of appeals, we think, properly answered the question in the negative, and its ruling in that respect is sustained by the authorities cited in the opinion reported in 11 Mo. App. 269. By indorsing the note the indorser contracted to pay the note at maturity, if the maker did not, conditioned only upon the fact that a demand be first made upon the maker, and notice given to the indorser of its dishonor, and. we think it clear, that in a suit by the holder against the indorser, after such demand, protest and notice, that he would not be permitted to introduce parol evidence to vary his contract, surely not to the extent of establishing an oral agreement made contemporaneous with, or anterior to the indorsement that he, in fact, was not to pay according to the contract which the law, from the indorsement alone, implies. Rodney v. Wilson, 67 Mo. 123; Jones v. Shaw, 67 Mo. 667, 670. Indeed the principle above stated, seems to be conceded by the learned counsel for plaintiff, but he contends that, notwithstanding it, plaintiff can maintain his action for damages on such contemporaneous oral agreement, and recover back as damages what he had voluntarily paid, and cites in support of his position, that in such action evidence of such oral agreement should bo received, a class of cases of which the case of the Life Association of America [631] v. Cravens, 60 Mo. 388, is a type, holding that when a part only of an entire contract is reduced to writing that parol testimony is receivable to supply that portion resting in parol. While that case announces this principle, in tkb case of Jones v. Shaw, 67 Mo. 667, 670, it is said after referring to the óase of Life Association of America v. Cravens, supra, “ that it is conceded when part only of an entire contract is reduced to writing the remainder may be proven by parol. Rut in all such cases, the parol contract must be consistent with, and not contradictory of the written one.” Judgment affirmed, in which all concur.