61 Mo. 213 | Mo. | 1875
delivered the opinion of the court.
From the record it appears that Smock, the defendant, sold to one Magoffin, a tract of land, and for part of the purchase money took his note, which is the note here sued on. The notéis in words and figures as follows: i;$l,716.60. On or before the 5th day of March, eighteen hundred aud seventy (1870), I promise to pay to J ames F. Smock or order, seventeen hundred and sixteen dollars and sixty cents, being the last payment on one hundred and twenty-five-eighfh-hnndreths acres of land purchased by me of said J. F. Smock, all in Saline ponnty, Mo. A title bond executed for a deed and held by J. P. Strother, at Marshall, Mo. This note to bear interest at the rate of 10 per cent, per annum from March 5th eighteen hundred and sixty-nine, (1869).” (Signed.) “ E. Magoffin.”
On the 23d of October, 1869, Smock sold and transferred the note to the plaintiff Bailey, and the petition alleges that he falsely and fraudulently represented at the time, that the note was secured by the land, and that there was no use in examining the records; assuring Bailey that the land was not encumbered and was worth double the amount of the note, and that Bailey relied on these assurances and purchased the note and paid the money on it without making any examination of the title. Smock, in his answer, and in his testimony, denied the fraudulent representation, but admitted that his statement was not true, as there was a prior encumbrance which he says he erroneously supposed was paid off.
Bailey therefore brought his suit to foreclose a vendor’s lien, returnable to the June term of the common pleas court, and obtained a final judgment at the September term, and sold the land at the December term then next. At the sale he became the purchaser, and after satisfying the prior lien by which he acquired a good title, he sold the same.
As the land did not bring enough to satisfy the note, this suit was brought against Smock for the balance on the assignment.
The main features of the defense were, that there was no false or fraudulent representation respecting the title when the note was sold to the plaintiff; that the note was negotiable and had not been protested, in consequence of which defendant was discharged ; that the plaintiff did not use due diligence in prosecuting his action, and that before sale of the land took place, defendant requested plaintiff to send him word and inform him of the day on which the sale would be had, and he would attend and make the land bring enough to satisfy all the indebtedness, but that defendant failed to give the information and the land was sold at a sacrifice.. Upon this last point the evidence was conflicting, but with that we have nothing to do.
For the defendant the court declared that if the evidence showed that the note sued on was a negotiable note, endorsed by the defendant before maturity to plaintiff, and that the note was not protested for non-payment at maturity, or defendant was not notified of protest, then the finding should be for the defendant, unless the fail nre to protest was occasioned by a false and fraudulent representation made by defendant, and plaintiff was induced thereby to neglect snchprotest.
An instruction was refused, that if after judgment on the note, plaintiff agreed or promised to send defendant word as to the time and place of sale of the land, under an assurance that defendant would make the laud bring plaintiff’s debt, and plaintiff failed to give such notice and defendant had no knowledge of the time when the sale would take place, then the verdict should be for defendant.
There was a verdict and judgment for plaintiff.
In reference to the first instruction for the plaintiff, the principiéis unquestionably established that fraudulent representations in respect to the title of land, will entitle the aggrieved party to relief; but the misrepresentations must be concerning something unknown to the party injured, who has been induced to act or abstain from examination from some special confidence reposed in the other party, as in this case, where the vendor prevents the vendee from making an examination of the records in regard to the title by assurances that the title is perfectly good and the property is free from encumbrances, and upon the faith of such assurances and representations the vendee abstains from making the proper examination.
The note in this case is made payable to James F. Smock or order, and purports to be in consideration of a purchase of land. The statute relating to bills of exchange and negotiable promissory notes provides that “every promissory note for the payment to the payee therein named or order or bearer, and expressed to be for value received, shall be due and payable as therein expressed, and shall have the same effect and be negotiable in like manner as inland bills of exchange.” (Wagn. Stat., 216, § 15.) It is only by force of the statute that promissory notes are invested with the character of negotiability and to render them so the words used by the statute must be inserted. Under the statute as it existed previous to the last revision, it was declared that “Every promissory note for the payment of money expressed on the face thereof to be for value received, negotiable and payable without defalcation,” should have the same effect and be negotiable in like manner as inland bills of exchange. Under this statute it was held that a note wherein the obligor promised to pay the obligee or order two hundred dollars with interest, etc., was not a negotiable note within the meaning of the statute. (Beatty vs. Anderson, 5 Mo., 447.)
So it was decided that to make a note negotiable within the meaning of the act, it was necessary that it should contain the words, “for value received, negotiable and payable without defalcation,” and that it was not sufficient where it con
¥e come now to consider whether the plaintiff as assignee used the necessary diligence to enable him to pursue his remedy against the defendant, his assignor, when he failed' to make the money from Magoffin.
The general rule is that, to make the assignor liable, suit must be instituted at the first term after maturity, or there must be some excuse shown for not doing so. (O’Fallon vs. Kerr, 10 Mo., 553; Stone vs. Corbett, 29 Mo., 350.) In Jacobs vs. McDonald (8 Mo., 565), Scott, Judge, in delivering the opinion of the court, said : “When a notéis assigned, the assignee takes the place of the assignor, and he is required to use that diligence that a prudent man would use to collect the debt, had it been his own ; and he will not be permitted to let the knowledge of the fact that he has a recourse against the assignor relax his exertions to obtain payment. Ho is required to act precisely as a prudent man would act, who had no recourse against another in the event of losing his debt. What his conduct should be must be determined from the circumstances of each case. It is the duty of the assignee to institute a suit against the maker as promptly as he may prosecute it with due diligence.” Was the diligence thus indicated pursued in the present case ?
Although the circuit court was the first court holding a session at which suit could be brought, still judgment was obtained and sale had quicker by taking the course the plain
The first instruction given for the defendant was wrong because it submitted a question of law to the jury, but the defendant is liot here complaining of his own instructions.
The only other point to be noticed is whether there was error in refusing to instruct as requested by the defendant in reference to the alleged agreement or promise that plaintiff would inform defendant when the sale took place, and we are of the opinion that there was not. Both parties resided in the same county and it was the defendant’s business to inform himself in regard to the matter. But the promise, if made, was a mere gratuity, and was supported by no consideration. Wherefore, upon the whole case, the judgment should be affirmed.
