American Insurance v. Smith

73 Mo. 368 | Mo. | 1881

Hough, J.

This was a suit on the following promissory note: $12. For value received, in policy No. 221,534, dated the 12th day of August, 1875, issued by the American Insurance Company of Chicago, Illinois, I promise to pay said company the sum of three dollars and — cents, on the 1st day of September, 1876, and three dollars and —• cents on the 1st day of September, 1877, and three dollars and — cents on the 1st day of September, 1878, and three dollars and — cents on the 1st day of September, 1879, without interest.

Thomas J. Smith.

The defendant was a citizen of Gasconade county, Missouri, and the property insured was situated in said county. The plaintiff offered the foregoing note, and the defendant’s application for insurance, in evidence, and rested, and the circuit court held that as it was a foreign corporation and had failed to show that it was duly authorized to do business in this State, the note sued on was without consideration and void, and it could not, therefore, recover.

The only question before us is, as to the correctness of this ruling. If the plaintiff had no authority to do business and issue policies in this State, the note in suit was void for want of consideration. Haverhill Ins. Co. v. Prescott, 42 N. H. 547; General Mutual Ins. Co. v. Phillips, 13 Gray 90; McCutcheon v. Rivers, 68 Mo. 122. And the burden of proof is always on the plaintiff' to show a consideration. Noxon v. De Wolf, 10 Gray 343; Burnham v. Allen, 1 Gray 496; Powers v. Russell, 13 Pick. 69. But under our statute the production of the note in evidence, where its execution is not denied, makes a prima facie case. R. S., § 663. This matter is set forth in a very clear light by Chief Justice Shaw in Burnham v. Allen, 1 Gray 496. He says : “A promissory note is given ‘ for value receivedthis is signed by the maker, and is an admission on his part that value has been received for it, which is a good consideration. Its being produced by the holder is proof that after being signed it was delivered to the promisee, and is, therefore, evidence of a contract, on good consideration, between promisor and promisee under the promisor’s hand. But the law holds, and has long held, that, as between the original parties, such proof is not conclusive. It is, therefore, prima facie evidence, that is, it is competent evidence tending to prove a proposition of fact, and, of course, if not rebutted or controlled by other evidence, will stand as sufficient proof of such proposition of fact. If then, on a trial, when a note is sued for by the promisee against the promisor, the plaintiff produces and reads his note for value received, and the signature is admitted or proved, he has ordinarily no occasion to go further. He has the burden of proof to show a consideration ; but he sustains that burden by his prima facie evidence, which, if not rebutted, stands as conclusive evidence.” In the case before us the defendant bas admitted by his signature to the note in suit, that he bas received as a consideration tberefor, a fire policy from the plaintiff; not a void policy, nor one illegally issued, but presumptively a good policy. As the plaintiff' might, by complying with our laws, rightfully issue a policy of fire insurance in this State, and as nothing appears on the face of the note or the application to indicate that the policy recited to have been issued, was issued in violation of law, or was for any other reason illegal or void, it must be presumed that the plaintiff had taken those steps, which would, under our law, authorize it to issue sucb policy. There being no testimony in the cause which required further proof from the plaintiff as to the sufficiency of the consideration of the note, the judgment will be reversed and the cause remanded.

The other judges concur, except Norton, J., absent.