97 Mo. App. 346 | Mo. Ct. App. | 1902
Lead Opinion
— This action was begun in July, 1899, by plaintiff against the two defendants, in the circuit court of Laclede county, Missouri. It is founded on the following instrument:
“$150.00. Lebanon, Mo., Oct. 19, 1898.
“Six months after date we, each as principal, promise to pay to the order of D. P. Hulbert, Manager Genille, of 923 Olive street, St. Louis, Mo., one hun*349 dred and fifty dollars, for value received, negotiable and payable without defalcation or discount at the Bank of Lebanon, in Lebanon, Missouri, with interest from date at the rate of eight per cent per annum until paid, and if interest be not paid annually to become as principal and bear the same rate of interest.
“Hinds and Weissgerber.”
The indorsements on the paper are as follows:
“D. F. Hulbert: For collection for account of E. U. Hugumin & Co.”
The petition charges that defendants promised by their said note to pay said sum, as therein expressed, and that said Hulbert, before maturity thereof, for value received, assigned and delivered said note to plaintiff. Then follow allegations of demand, non-payment and protest (whereby' protest fees accrued to plaintiff) and a prayer for judgment for $150, with interest and protest fees.
The answer denies the petition generally (except the execution of the note) and then charges that the only consideration for the instrument arose from these facts:
“That they executed the note sued upon to one D. F. Hulbert, as manager for one Genille, of St. Louis, Missouri, the payee of said note, and that the same was given upon the following conditions and the only consideration of said note was Ghat the said Genille or his agent, D. F. Hulbert, was to furnish these defendants one thousand stamps and folders known as Genille stamps and folders, with full instructions as to their redemption, ’ and it was expressly stipulated by and between these defendants and the payee of said note that for and in consideration of the defendants’ signing and giving said note herein sued upon, that they would keep and maintain a good and competent photographer in Lebanon, Missouri, to redeem said stamps by making and forwarding them to St. Louis, Missouri.
“Defendants further complaining, say that it was expressly understood by. and between the payee of said*350 note and these defendants that for and in consideration of said note herein sued upon that when said stamps were forwarded to G-enille at St. Lonis, Missouri, the same were to be redeemed by said Genille with suitable prints and photographs, to be furnished in their patent statuary photography, and then returned to the defendants free of any charge or expense whatever.
“Defendants state and represent that in each and every particular the payee of said note failed, refused and neglected to comply with the agreement and consideration for which said note was given; that they failed and refused to deliver a sufficient number of folders for said stamps, as agreed and expressly stipulated as a part of the consideration of the note herein sued on.
“Defendants say that they failed, neglected and refused to establish a redemption agency in Lebanon, Missouri, as expressly stipulated and as a part of the consideration of the defendants ’ signing and giving said note herein sued upon.
“Defendants further say they failed, refused and neglected to make and forward to these defendants suitable prints or any prints at all or photographs, as expressly stipulated and as a part of the consideration of said note.
“Defendants in answering, further aver that said note was obtained by fraud and that the consideration of said note entirely failed, and that the same was not bona fide purchased by the plaintiff but is a conveyance by and between the payee of said note and plaintiff herein to cheat and defraud the defendants out of their just rights in the premises.
“"Wherefore defendants pray to find said note void and for naught held, and that they be discharged with costs.”
The cause coming on for trial before the learned circuit judge and a jury, plaintiff read the note and indorsements in evidence, despite objection by counsel for defendants on the ground that the indorsements had not been proved. Plaintiff then testified that he lived
, He further stated as a witness that he and Mr. Hnlbert occupied parts of the same business building; they had adjoining stores on the ground floor of 923 Olive street, St. Louis, where plaintiff had been in business about two years and Mr. Hnlbert for a longer time. Plaintiff testified that he bought the note in suit with a check on the Union Trust Company; that he made no previous inquiry about the financial standing of defendants; bought no other notes of him; had had no talk with Mr. Hnlbert about the pending suit; had no understanding with him about the expenses thereof; had made no demand on him to pay the note; didn’t ask anything about what the note was given for; never heard of any failure of consideration of the note; had not abandoned his claim against Mr. 'Hnlbert as indorser.
Plaintiff introduced in evidence the check for $100 which he had described as given for the note in suit.
The foregoing is an outline of the substance of the plaintiff’s case.
The defendants gave testimony tending to show a failure of consideration for the note between them and the payee. It does not seem necessary to mention the particulars of it considering the view we take of the main question involved in this appeal.
At the close of the whole testimony the court gave to the jury the following instruction:
“Under the law and the evidence, the jury is instructed to find the issues for the plaintiff and assess his damage at the amount of said note, together with inlerest.”
Whereupon the jury returned a verdict for plaintiff for $175.41 and judgment was entered thereon. Defendants appealed, observing the customary formalities.
Without going very far into the merits of the case, it is clear that the burden of proof rested on plaintiff to submit in the first instance some evidence tending to prove the fact of the indorsement. The trial court admitted in evidence the indorsement of the payee without any prior proof of its authenticity, and over the objection and exception of the defendants. The indorsement did not prove itself. Bank v. Pennington, 42 Mo. App. (K. C.) 355. Defendants admitted the execution ojf the note, but that admission did not waive or dispense with proof of the indorsement. Such proof was an essential part of plaintiff’s case. Bank v. Donnell, 35 Mo. 373; Mayer v. Old, 51 Mo. App. (K. C.) 214. Plaintiff as a witness testified to the signature of the payee, but he was cross-examined by defendants in such a way as to indicate that the validity of the indorsement was by no means conceded as it was in Stillwell v. Patton, 108 Mo. 352. The testimony of plaintiff by his deposition tended to prove the indorsement, but it was the province of the jury (subject to the reviewing power of the trial judge) to decide, as an issue of fact, whether they believed that testimony, according to the recent rulings of the Supreme Court on the subject. Even though no conflict of testimony was developed on those points, the credibility of the plaintiff’s testimony was, nevertheless, to be passed upon by the jury. Gannon v. Gas Co., 145 Mo. 502; Seehorn v. Bank, 148 Mo. 256. For the court to declare that the jury are bound, as a matter of law, to believe the testimony of plaintiff, irrespective of their opinion of its truth, would be for the court to invade the domain of the triers of the facts. Bryan v. Wear, 4 Mo. 106; Garesche v. Boyce, 8 Mo. 228; Steamboat Memphis v. Matthews, 28 Mo. 248; Gregory v. Chambers, 78 Mo. 294; Wolff v. Campbell, 110 Mo. 114; Mineral Land Co. v. Ross, 135 Mo. 101. Yet that was precisely the effect of the binding instruction to find for the plaintiff in the case at bar.
Rehearing
OPINION ON REHEARING.
— This cause has been fully reconsidered on a rehearing granted at the instance of plaintiff.
It is insisted that the record itself does not show that the bill was filed. There is this recital by the circuit clerk in his statement setting forth the record proper in this cause, viz.:
“And afterwards, to-wit, and on the seventeenth day of April, 1901, the defendants filed their bill of exceptions in this cause, which is in words and figures as follows, to-wit:
(Then follows the bill).
At the close of the transcript (for this case is here upon a full transcript) the clerk officially certifies the " foregoing ” to be a true and complete copy of the judgment, motion for new trial, affidavit for appeal and " all orders and motions- affecting the saíne” in the case (citing the title of this case).
It is true, as often held, that the record must show that the bill of exceptions was filed, independently, of any recital in the bill itself. Ricketts v. Hart, 150 Mo. 64; Hughes v. Henderson, 95 Mo. App. (K. C.) 312, 68 S. W. 1069. But we consider the entry above quoted to be a sufficient showing of record of the filing of the bill.
The judgment is reversed and the cause remanded for new trial,