137 Mo. App. 428 | Mo. Ct. App. | 1909
— Action on a negotiable promissory note dated May 19, 1906, at Edina, Missouri, executed by defendant and whereby he promised to pay to the order of the Knox Milling Company $320.06 for value received, with interest at six per cent from date, and indorsed on the back under date of July 18,1906: “Pay to the order of George L. Avery.” In the petition it is alleged the note was assigned by the. payee, Knox Milling Company, to plaintiff in accordance with the. indorse
Another assignment of error is that the case was tried outside the issues joined in the pleadings, wherefore irrelevant evidence was admitted, and the allegations of the petition remain unproved. The supposed irrelevant evidence consisted of account books of the Milling Company and some other testimony, all of which was received to show from what transactions the indebtedness covered by the note accrued. This evidence was objected to because the cause of action stated in the petition was, that plaintiff was an innocent holder of a negotiable instrument obtained by him for value before maturity and his right to recover, according to the face of the instrument, could not be impaired by payments made to the payee named in it. which had not been en
It is further contended the evidence for plaintiff failed to prove the allegations of the petition in their entire scope and meaning. The point for decision as regards plaintiff’s right to recover in the capacity of payee, on pleadings demanding a recovery as an innocent indorsee, calls into the discussion section 798 of the Statutes (E. S. 1899) which reads:
“Where the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof.”
No point was raised about the supposed failure of proof or variance at the trial or in the motion for new trial, and if it was but a variance, defendant was bound to proceed in the statutory mode by filing an affidavit of surprise. Instead of doing this, his efforts, from the first, were directed solely toward proving the payments