179 Mo. App. 198 | Mo. Ct. App. | 1914
In this case plaintiff brought five suits in a justice court of Jackson county, Missouri, upon five notes by merely filing with the justice the said notes without further statement of his cause of action. Summonses were issued and served upon the defendant in each of the suits and on the return day judgment was rendered for plaintiff. Defendant appealed to the circuit court where the five suits were by agreement consolidated into one.
A jury was waived and the cause submitted to the court. Plaintiff offered in evidence the five notes and rested. Defendant demurred. The court overruled the demurrer and rendered judgment for plaintiff on the notes. Defendant appealed.
All of the notes are dated at Des Moines, Iowa, December 29, 1906, and are identical, except they respectively fell due on the first days of August and October, 1907, and April, May, and July, 1908. The following sets forth the other termsi of all of the notes:
“$200.00. Des Moines, Ia., Dec. 29, 1906.
On or before the 1 day of May, 1908, for value received I promise to pay to the order of A. J. McColl the sum of two' hundred dollars, payable at Des Moines, Iowa, with interest at 8 per cent per annum- from date. Interest payable semiannually.
*201 Upon default of payment of this note the makers, endorsers, guarantors and sureties agree to pay all attorneys ’ fees and expenses of collection, and consent that any Justice of the Peace may have jurisdiction of this note to the amount of $300' and — do hereby severally waive demand of payment, protest and notice of protest of this note, and consent that time of payment may be extended without notice. A failure to pay interest when due shall cause this note to become due.
A. W. Dudley.”
On the back of each appeared the following: “A. J. McColl. Without recourse on me. J. S. Turrill.” The name of A. J. McColl on the back of the notes was admitted to be his signature.
It will be observed that the notes provide for the payment of attorneys ’ fees and expenses of collection, and that the time of payment may be extended without notice. Under the statutory provisions of the Negotiable Instrument L,aw, this would not destroy their negotiability. [Sections 9972, 9973, R. S. Mo. 1909.] However, without these statutory provisions, the notes are not negotiable. [McCoy v. Green, 83 Mo. 626, l. c. 633; First National Bank v. Gay, 63 Mo. 33; Samstag v. Conley, 64 Mo. 476; Creasy v. Gray, 88 Mo. App. 454; Culbertson v. Nelson, 93 Iowa, 187; Woodbury v. Roberts, 59 Iowa, 348; Chouteau v. Allen, 70 Mo. 290; Coffin v. Spencer 39 Fed. 262.]
And it will be further noticed that the notes were all made in Iowa, are payable in Iowa, and are, therefore, Iowa contracts. [39 Cyc. 898; The South Missouri Land Co. v. Rhodes, 54 Mo. App. 129; Central National Bank v. Cooper, 85 Mo. App. 383; Case Threshing Machine Co. v. Tomlin, 161 S. W. 286, l. c. 289 and cases cited.]
If the note is nonnegotiable the mere writing of his name by defendant McColl on the back thereof will not make him liable as an endorser. There must be proof of the actual agreement under which the endorse-
There was no proof that Iowa has passed and has in force the statute known as the Negotiable Instruments Act, and the liability of defendant must be determined by the law of that state if the same can be ascertained or presumed. We cannot take judicial knowledge of the existence of such statute in Iowa. In Rashall v. Railroad, 249 Mo. l. c. 516, it is said: “Our courts do not take judicial cognizance of the laws of sister states or foreign countries when they are issuable facts in any controversy. In such cases formal proof must be made just as of any other fact, and it is immaterial that the court may be possessed of independent knowledge of the foreign laws.”
But plaintiff contends that as there is no proof of what the law in Iowa isi, we are authorized to apply the law existent and in force in our own state. This may be true where there is neither proof nor ground for presumption as to what the law in the other State is. In such case, since the court has no proof of the law in force in the other State and has nothing upon which to base a presumption as to what that law is, it will not say it is helpless and without law, but will apply the law of
Consequently, the question arises to which class- of States does Iowa belong? Is she a State in which the common law never prevailed before her admission into the Union, or is she one In which the common law was put in force, prior to her admission, by any statute or ordinance of which we are to take judicial notice? Here it might be readily taken for granted that, inasmuch as-Iowa was a part of the Louisiana Purchase and was. therefore under civil or French law, she was never under the common law prior to her admission. But the fact that she was under the French law while a part of the Louisiana Purchase is not material if the common law was, prior to her admission, put in force there by any statute of which we are required to have judicial knowledge. If it was, then we must take judicial notice that the common law was, by the passage of such ordinance or statute, put in force there at that time, and, having* been once in force, that law is presumed to have remained in force until the contrary is shown. The case of Flato v. Mulhall, 72 Mo. 522, is not
So that if, as stated before, the common law was put in force in Iowa, prior to her admission, by any ordinance or statute of which we must take judicial notice, then that law is presumed to have remained in force until now, in the absence of any proof to the contrary.
An examination of the various laws and ordinances of Congress dealing with Iowa prior to her admission into the Union, and of the Territorial laws oi Missouri when Iowa was a part of the Territory oí Missouri will disclose that the common law was clearly established there by lawsi of which we are bound to take judicial knowledge.
These various Acts of Congress, which are all of a public nature, and the Territorial Laws of Missouri, are all within our judicial notice without proof. [1 Greenleaf on Evid. Sec. 490; 17 Am. & Eng. Ency. of Law (2 Ed.) 928; Mobile, etc. Ry. v. Bromberg, 37 So. Rep. l. c. 401; Missouri K. &. T. Ry. v. Wise, 109 S. W. 112; Overton v. McCabe, 109 S. W. 861; Perry v. Movis, 104 S. W. 571; Greene v. Boaz, 47 S. W. 255.]
After possession was taken of the Louisiana Purchase under the treaty with Napoleon and the Act of Congress of October 31, 1803, Congress, by an Act approved March 26, 1804, divided the Purchase into two territories and all north of the 33rd degree of north
After Missouri became a State that part of the Territory of Missouri comprising what is now Iowa was by Act of Congress made a part of the Territory of Wisconsin. The Act of Congress of April 20, 1836, by which the Territory of Wisconsin was created, put in force the same system of laws in force under the Ordinance of 1787, approved July 13, 1787, governing the Northwest Territory, out of which Wisconsin was one of the five states carved. Article 2 of this Ordinance of 1787 provided that “The inhabitants of said Terri
The Supreme Court of Illinois, in Penny v. Little, 3 Scammon (Ill.) 301, held that this provision meant the common law as it was then understood and expounded by the courts in America. And the fourth year of the reign of King James I was the year fixed for the transplanting of the common law into America because that was the period at which the first territorial government was established in America and with it the common law of England as it then existed. In Clark v. Clark, 18 Ind. 156, l. c. 158 it is said: “We know judicially that the common law was brought from England to this country by our ancestors and was declared for the government of the Territory of the Northwest .. . . to be a part of the fundamental law of that territory.” [See also Coburn v. Harvey, 18 Wis. 156; Stout v. Keyes, 2 Doug. (Mich.) 184; Forman v. Benson, 8 Mich. 18, l. c. 21; Crane v. Reeder, 21 Mich. 24, l. c. 61.]
Now on June 12, 1828, Congress by an Act of that ■date organized the Territory of Iowa, and Section 12 of ;said Act provided: ‘ ‘ That the existing laws of the Territory of Wisconsin shall be extended over said territory subject to be altered, etc., by proper authority.”
The Supreme Court of Iowa, in the case of O’Fallon v. Simplot, 4 Iowa, 381, l. c. 399, held that ‘1 the Ordinance of 1787 for the government of the Northwest Territory, made it (the common law) the law of that country; and that was extended over Wisconsin, and then the laws of Wisconsin over Iowa. ’ ’
So that, we see that not only was the common law established over what is now Iowa by the Territorial Statute of Missouri of January 20, 1816, but that the common law was established over the Northwest Territory by the Ordinance of 1787; that, when Wisconsin was carved out of this Northwest Territory, into the Territory of Wisconsin, the same law was put in force