Plaintiff is an insurance company doing business in the states of Missouri and Kansas. Defendant Buchalter was appointed by plaintiff as its agent in and for Kansas City, Kansas, and as such executed a bond in the sum of $500 with defendant Dunham and one, Lee, as sureties, conditioned that he would faithfully perform his duties as such agent, and that he. would duly and promptly account for and pay over to the plaintiff all money and premiums collected by him for insurance risks taken by him. The judgment in the trial court was for defendants.
Defendant Buchalter pleaded and was permitted to give evidence tending to prove substantially the following facts in full defense to the bond. That the plaintiff had as .its agents in Missouri, defendants Dunham and said Lee. That desiring to extend its business into the state of Kansas (it being a foreign company) and the law of that state making it unlawful to do business therein except through an agent who was a legal resident of such state, plaintiff appointed Buchalter, who was a resident of said state, as its agent for Kansas City, in that state. That plaintiff did not intend that Buchalter should transact any business in Kansas as such agent, but that the business would be transacted by said Lee and Dunham in Kansas City, Missouri. That while the collections were made and the business in Kansas transacted in his name, yet he, in point of fact, did not collect the money and did not transact plaintiff’s business. The answer continuing, states: aThat at said time the said • Buchalter consented to act as such nominal agent, without any consideration therefor whatever, and at the solicitation and request of the plaintiff the said Buchalter agreed to, and did, sign the bond mentioned in the plaintiff’s petition, without any consideration therefor whatever.”
*507The chief question presented is, whether the foregoing should have been permitted, to be shown in defense.
We are of the opinion it should not. To permit such defense would violate the fundamental rule that evidence of a contemporaneous contract can not be received to add to, contradict or vary the written contract. Thresher Co. v. Lumber Co., 81 Mo. App. 255; Smith v. Thomas, 29 Mo. 307. This rule is not denied by defendant, but he does not concede its application to the facts herein set out and he cites in his brief some cases which lend more or less support to his contention. They are chiefly from the supreme court of Pennsylvania, a court which regards the rule just mentioned with less strictness than it has been regarded in Missouri. State ex rel. v. Hoshaw, 98 Mo. 361. We can not discover where there is much difference between the facts of this case and those in Smith v. Thomas, supra. There the effort was to show that in a certain event only half of the sum promised in a promissory note should be collected of the maker. It is true that one can show a total or partial failure of consideration in defense of his obligation, but here it is not a question of consideration. The consideration is ample, in that defendant admits that he entered into the bond and accepted the agency. The whole case made for defendant is that the written obligation which he executed was not the real contract between the parties.
The result of the foregoing is to reverse the judgment and remand the cause.
All concur.