Settles v. Moore

REYNOLDS, P. J. (after stating the facts).— The errors relied upon by the learned counsel for the appellant are, first, that the defenses of non est factum and of failure of consideration are inconsistent; that the proof of one disproves the other. Counsel cite in support of this the case of Gabriel v. Met. St. R. Co., 130 Mo. App. 651, 109 S. W. 1042. We do not agree with counsel and do not think that the case cited bears him out in his contention. The case was instituted before a justice of the peace originally and the ordinary defense was put in as before a justice, practically that they did not owe the notes, an affidavit denying that the notes had been delivered being also filed. At the trial 732 in the circuit court defendants gave evidence tending to prove both of these, in that it tended to prove that the machine shipped was not of the kind purchased — • a failure of consideration. Our courts have decided in several cases that the plea of non est factum is not incompatible with the defense- of payment and we see no reason to hold that the defense of delivery without authority, which is practically the defense of non est factum here made, should be held to be incompatible with the defense that the consideration had failed. Defense of non-delivery must be made under oath. [Hahs v. Cape Girardeau & C. R. Co., 147 Mo. App. 262, 126 S. W. 524; Hart v. Harrison Wire Co., 91 Mo. 414, 4 S. W. 123.] While defendants admitted that they signed the note in suit, they denied delivery by their authority, claiming that the delivery made was in violation of the arrangement between them and the agent of the Weber Implement Company. Their claim' is that there was to be no delivery until a machine of the kind contracted for had been delivered, and the real defense was that the machine delivered or tendered was not of the kind contracted for and hence the delivery should not have been made of the note in suit to the Weber Implement Company. We see no inconsistency in this line of defense. Criticism is made of the instruction of the court given at the instance of defendants, in which the court told the jury that the verdict must be for defendants, “although you may believe that plaintiff had no actual knowledge of the non-delivery of the note or of the failure of consideration therefor.” This is error. Reading all the testimony as abstracted by counsel, we are unable to find any testimony tending to prove that plaintiff had. such knowledge. The evidence made a case for the determination of the jury as to whether there was execution and delivery of the notes, and it would have been error to have taken it from the jury on that issue, for if there was no execution, if the notes 733 were to be placed and held in escrow until defendants received the machine and they were delivered contrary to the terms of the escrow, there was no execution of them and plaintiff could acquire no title. In effect, delivery contrary to agreement would constitute no delivery and no execution. The judgment is reversed and the cause remanded. Goode and Nortoni, JJ., concur.