O'Shea v. Lehr

NORTONI, J. (after stating the facts). — The above statement is the most favorable view of the case to plaintiff, for there is an abundance of contradictory evidence in the record introduced on the part of de-. fendant. Defendant insists that he at no time became a partner with plaintiff in the matter of wrecking the buildings, but merely undertook to aid him upon his urgent solicitation to do so. Defendant says that he advanced the $5000 certified check to plaintiff as a loan and took his note therefor, payable on demand, both parties expecting that the check would be withdrawn from deposit with the city authorities in a few days, and returned to defendant. Defendant’s bookkeeper, "Wishmeyer, says substantially the same about this transaction and testifies that he drew up the note, which plaintiff signed, on the day of its date, September 14, two days after defendant had gone to Colorado, Wishmeyer says, too, and defendant testifies to the same effect, that though he was the bookkeeper of the Kellermann Contracting Company, he kept books for plaintiff as well, under an agreement by which plaintiff was to pay him for such service, and that he in no manner represented defendant while so doing. Defendant explains the matter of advancing $2400 to enable plaintiff to pay the $4900 note on-which Kellermann was security, saying that, unless he — 688 — did so, he feared plaintiff would abandon the contract with the city and thus forfeit the $5000 certified check which he hoped to enable him to recover so as to compensate the indebtedness plaintiff owed him. Defendant further explains that his frequent presence about the work being conducted by plaintiff was because of his desire to urge it along, so that he might receive páyment of the $5000 advanced under circumstances suggesting at the time that it might be returned within a few days, but which subsequently threatened to entail a loss upon him. Touching the $2000 here in suit, it is insisted by defendant that plaintiff paid him that sum to be credited on the $5000 note, and Wishmeyer, the bookkeeper, testifies to the same effect. Defendant and Wishmeyer both say that defendant was constantly after plaintiff endeavoring to collect money from him, -and finally he was induced to assign a check for $2000 of the Kellermann Contracting Company to defendant as a payment thereon, and this is the $2000 in controversy. Defendant says he credited the amount on the note, with plaintiff’s acquiescence, as he did the $1100 collected from plaintiff about a month before that date. Prom what has been said, it appears that there is a controversy between the parties as to whether or not plaintiff executed to defendant the $5000 note in suit and whether or not the sum of $2000 sued for was to be .credited thereon. Plaintiff testifies that he affixed his signature to the $5000 note, believing it was a receipt, and that he did this at the instance of defendant. Defendant says he left the draft with Wishmeyer and went to Colorado, and that Wishmeyer took the note 'for him from plaintiff two days thereafter, and the note appears to be dated accordingly — that is, September 14th. Wishmeyer testifies positively that upon -delivering the $5000 draft of plaintiff on Monday •morning, September 14, he drew up the note and required plaintiff to sign it as defendant had instructed -him to do before leaving for Colorado on Saturday. — 689 — Wishmeyer says, too, plaintiff understood the transaction fully. The testimony of plaintiff is to the effect that he went to defendant’s office on Saturday afternoon, September 12, when defendant said to him, “Joe, I want you to sign a receipt now. I am in a hurry to get away; it is just a receipt to show, in case anything happens to me on my trip, we will know what become of this $5000 certified check.” Plaintiff says, upon this statement being made by defendant, he merely signed the note without reading, thinking it was a receipt and went away; moreover, that it was several months thereafter before he learned that defendant claimed to have his note and that though he paid defendant $1100 in April he made this payment to defendant as his partner as a part of the proceeds of the wrecking business and not as a payment on the note. Plaintiff requested the court to instruct the jury that if he signed this note under the circumstances above set forth, believing it was a receipt at the time, then the finding should be for him with respect to that matter. The court refused this instruction, and it is urged such was error, for it is said on the evidence the question is one of fact as to whether or not plaintiff had given defendant his note or merely signed a receipt for the $5000 cheek. But it is clear enough that the court did not err in refusing this instruction, for the evidence is wholly insufficient under the decisions in this State to render the question concerning it one for the jury. There is nothing in the record to suggest that plaintiff was unlearned or not amply able to care for himself in transactions of the character here involved. Indeed, he appears to be an active business man, conducting extensive operations as a contractor and reads and writes as business men usually do. The rule is, that unless fraud is practiced upon him, a person who signs a contract is conclusively pre — 690 — sumed to know its contents and to assent to the terms it reveals on its face. The mere fact that he omits to read the contract before affixing his signature thereto in no wise alters the rule. But it is true that if a party is induced, through fraud and deceit, to sign a promissory note when he believed he was signing a receipt only, relief may be afforded to him either in law or in equity. Where one is induced by another to rely upon his reading the contract to him before signing, and .such person misreads it, with a view to deceive, and thus obtains his signature to a document different from that intended, relief may be had on such showing alone. But this proceeds from the fact that such á betrayal of confidence is both so revolting and so infrequent that it is not likely to be anticipated by the average man. [See Tait v. Locke, 130 Mo. App. 273, 282, 109 S. W. 105; Carroll v. Peak, 156 Mo. App. 446, 136 S. W. 961.] However, cases of that character are not identical with those where nothing more appears than a mere misrepresentation of the contents or character of a paper to which another affixes his signature. In cases of the character last referred to, something more must appear to invalidate the contract than that the party merely signed the note without reading on being told by the party presenting it that it was a receipt. When it appears that the person so signing the note is amply able to read and understand and is familiar with business transactions generally, he may not be relieved of an obligation on the grounds of fraud or misrepresentation, unless something more appears to mislead or trick him than the mere fact the party presenting the note said it was a receipt. Touching such matters Chancellor Kent has well said: “The common law affords to everyone reasonable protection against fraud in dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly or a careless indifference to the ordi — 691 — nary and accessible means of information.” [2 Kent’s Comm. 485.] Numerous authorities in this State sustain the view that something more is required to render the question of fraud concerning the execution of an instrument one of fact for the jury than the mere signing of it, without reading, by one who is amply able to read and understand, at the request of another, relying on his statement concerning the contents or character of the contract. [See Johnston v. Cov., etc., Ins. Co., 93 Mo. App. 580, 590, 591; Magee v. Verity, 97 Mo. App. 486, 71 S. W. 472; Crim v. Crim, 162 Mo. 544, 552, 553, 554, 63 S. W. 489; Ely v. Sutton, 177 Mo. App. 546, 162 S. W. 755.] The court did not err in refusing to submit to the jury the matter of the alleged imposition upon plaintiff, in obtaining his signature to the note, when he supposed it was a mere receipt, for the reason the evidence touching this matter is insufficient to create an issue of fact concerning it. In this view it was competent for the court to treat the note as a note at law, executed by plaintiff to defendant, for it admittedly bears his signature and purports on its face to be a promissory note in the usual form. There is some evidence in the record tending to prove that plaintiff here sued the Kellermann Contracting Company, of which defendant is secretary, for a balance said to be due plaintiff on a contract for improving Dickson street, and that he prevailed in that action. It appears, too, that defendant assigned the $5000 note to the Kellermann Contracting Company some months after the credits of $1100 and $2000 were entered thereon, and subsequently the Kellermann Contracting Company assigned a note back to defendant. It is said, though not proved in the case,' that the Kellermann Contracting Company interposed a counterclaim on this $5000 note in plaintiff’s suit against it and that, the jury found the issue with respect of it in favor of — 692 — plaintiff. However, there is nothing said in the pleadings touching this matter whatever. Neither plaintiff’s petition nor defendant’s answer refers to this note. If the note is res adjudicata because of its having been in suit in the Kellermann case,' no reference is made to that matter in the pleadings and, indeed, no argument is advanced here concerning that subject. Plain tiff’s petition proceeds on the theory that he loaned defendant $2000 which defendant refused to pay after demand. Defendant’s answer is a mere general denial, and the note came into the case by way of the evidence without reference to it in the pleadings. Plaintiff sought to prove that the note was declared upon in the counterclaim of the Kellermann Contracting Company in his suit against that concern and the finding and judgment were for him thereon. An objection was interposed by defendant’s counsel to the method of proof to the effect that the record in the case of this plaintiff against the Kellermann Contracting Company was the best evidence concerning that matter. This objection the court sustained. It is argued the court erred in this ruling, but we are not so persuaded. If the matter were relevant, the best evidence concerning it, of course, should have been produced, and this was not done. However, it is to be said that the theory pursued by defendant in the instant case goes to the effect that, even though the note was in suit in the Kellermann ease, the verdict and judgment therein concluded only that portion which remained due at the time, for it is said the $2000 involved here was paid by plaintiff to defendant on the note several months prior to its assignment by defendant to the Kellermann Contracting Company and several months before the suit against that company in which the note was set up in the counterclaim. Concerning this feature of the case, it is unnecessary to say more than it was competent for plaintiff to pay $2000 on the note, even though it was obtained from him through fraud, if he — 693 — saw fit to do so, and as that payment on the note was made, if at all, prior to Ms suit against the Kellermann Contracting Company, of course, only the balance appearing to be due on the note thereafter could become the subject of res adjudicada, in any view. The court instructed the jury that the burden of proof rested upon plaintiff, and it is urged this was error. But we are not so persuaded. By his petition plaintiff stated that on the 22nd day of May, 1909, at the request of defendant, he loaned to him the sum of $2000 which sum defendant agreed and promised to pay. The smt appears to proceed on an express contract to repay the money as if it were a loan and because of the breach of the agreement to do so. Obviously, in such circumstances, the burden of proof lies with the plaintiff. [See McKee v. Verdin, 96 Mo. App. 268, 70 S. W. 154.] But it is argued that because defendant concedes in his evidence that he received the $2000 from plaintiff, but says it was paid to him on the note, the burden was thereby sMfted to him with respect to tMs matter. This suggestion is without influence in the case, for plaintiff expressly declares upon a loan to defendant and seeks to recover because of his failure to observe the obligation to repay it. Moreover, though the burden of the evidence may shift from side to side in the ease, as that given by the parties appears to establish or rebut a prima-facie showing, the burden of proof remains throughout on the party asserting the affirmative of the proposition to be sustained. [See Berger v. Storage & Commission Co., 136 Mo. App. 36, 42, 116 S. W. 444.] It would unduly extend the opiMon to discuss separately all of the instructions refused but they have all been considered, and we see no reversible error with respect to the rulings thereon. The same is true as to the rulings on the evidence. The judgment should be affirmed. It is so ordered. Reynolds, P. J., and Allen, J., concur.