Bethany Savings Bank v. Cushman

66 Mo. App. 102, 1896 Mo. App. LEXIS 21

• Court: Missouri Court of Appeals
• Decided: April 6, 1896
• Status: Published

Opinion

Smith, P. J.

This is a suit which was brought against the defendant as guarantor of three promissory notes described in the petition. The defendant pleaded that he had been released from his liability as guarantor, by reason of a contract of settlement between him and plaintiff, wherein it was recited that in consideration of the surrender by him to plaintiff of certain property, plaintiff would release him from allhis indebtedness to it. He also pleaded in his answer a counterclaim or set-off against plaintiff’s demand.

Under the evidence and instructions the jury found a verdict for plaintiff for the amount of the guaranteed notes, after deducting the amount of defendant’s set-off testified to by him, and submitted in his instructions, upon which verdict there was judgment accordingly. From the latter defendant has appealed.

The defendant’s sole ground of appeal is that the trial court erred in permitting the plaintiff, over his objections, to introduce evidence tending to show negotiations between defendant and plaintiff’s officers, precedent to, and contemporaneous with, the making of the written contract pleaded in defendant’s answer. Undoubtedly, it is the very well established rule in this jurisdiction that all the precedent, as well as contemporaneous negotiations in relation to a contract, afterward reduced to writing, are, in the absence of accident, etc., conclusively presumed to have been entirely merged and expressed in the written contract, which thenceforth becomes the sole expression of the agreement of the parties. Tracy v. Iron Works, 29 Mo. App. 342; s. c., 104 Mo. 193; Boyd v. Paul, 125 Mo. 9, and cases cited. Tested by the above rule, the evidence would seem to have been improperly admitted.

But there are other considerations which we can not overlook in our consideration of the action of the court in the matter. They are these: It appears that the defendant, on whom the burden was cast by the pleadings, had, previous to the time of the introduction by plaintiff of the testimony objected to, himself testified to the various negotiations between the plaintiff’s officers and himself, which had taken place anterior to, and contemporaneously with, the entering into the written contract. If it was error for the plaintiff to introduce evidence' of the kind just referred to, the defendant invited it by first introducing like evidence himself, so that he thereby disabled himself to make objections thereto, otherwise available to him.

The contract pleaded provided that in consideration of the conveyance by defendant to plaintiff of certain real and personal property, the plaintiff agreed “to release said Cushman (defendant) from all indebtedness to (it) the bank, the bank' retaining all notes and accounts heretofore sold or deposited with the bank.” The issue was whether the notes sued on were included in the release. As.a matter of law, we should be inclined to think that by the expression “all indebtedness” the parties intended to include, not only the direct, but the contingent debts of the defendant. The terms employed in expressing the agreement seem to be broad enough to include direct and contingent indebtedness ; but both parties, as shown by the evidence introduced by them, tried the issue on the idea that the terms of the contract were obscure and should be interpreted in the light of all the surrounding circumstances. The parties in the court below were permitted to contest the issue on their own chosen ground and can not now be heard to complain of the result.

The judgment must be affirmed.

All concur.