111 S.W.2d 189 | Mo. | 1937
Lead Opinion
The Union Coffee Grocer Company, a corporation, executed its $25,000 principal amount nonnegotiable promissory note, bearing date of November 20, 1928, secured by deed of trust on certain real estate in the city of St. Louis, and payable in monthly installments to the Farm Home Savings Loan Association, a corporation, appellant. The papers were executed at the office of the coffee company by A.G. Young, as president, and A.W. Pfeifer, as secretary, in the presence of Robert E. Steele, a representative, of the association, and the directors of the coffee company, A.W. Pfeifer, A.G. Young, William Burgard, Geo. W. Theiss and A.M. Genisio, who placed their names on the back of the note. Default occurring, appellant caused the deed of trust to be foreclosed on January 9, 1930, and by this action seeks to recover, $11,804.23, balance due on said notes, after crediting the proceeds of said foreclosure sale, from Messrs. Pfeifer, Burgard and Theiss, respondents, the said coffee company having been adjudged bankrupt and a judgment against Messrs. Young and Genisio having been obtained by appellant in the State of Illinois. Respondents' evidence, admitted over the objections and exceptions of appellant, was to the effect that respondents signed the note for the accommodation of appellant to warrant that the instrument was duly authorized and executed by the coffee company *43 and that they had a contemporaneous oral agreement that they incurred no liability as makers or promisors on said instrument. Each respondent testified that he personally did not receive any part of the $25,000, which was applied by the coffee company to the discharge of obligations of said company, including an indebtedness of $10,000 about to become due, secured by a deed of trust.
Respondents say the testimony was admissible to show they signed the note for the accommodation of appellant and without consideration. We are referred to cases involving accommodation and accommodated parties under the Negotiable Instruments Law. Illustrative of these is Dickherber v. Turnbull (Mo. App.), 31 S.W.2d 234, 236 (2, 3), holding that if the payee is the party accommodated by the accommodation party, the accommodated payee acquires no rights against such accommodation party, there being no consideration as between them. Other cases relied on by respondents are Chicago T. T. Co. v. Brady,
[1] A third party affixing his signature in blank on the back of commercial paper enters into a legal relationship with the other parties to the paper. As succinctly stated by ROMBAUER, P.J., in Barnett v. Nolte,
[2] Notwithstanding the testimony of respondents that they personally received no consideration for their respective signatures, the detriment accruing to plaintiff by reason of its payment of $25,000 to the coffee company [Starr v. Crenshaw,
[3] Mr. Pfeifer, after signing the note as secretary of the corporation on its face, was the first director to sign the note on the back and added the word "secretary" after his signature. Mr. Steele stated this was not necessary and, according to respondents, struck out the word "secretary." Respondents say this created a latent ambiguity and seek to justify the admission of the parol testimony *45
establishing their nonliability on that ground. The undisputed testimony established the word "secretary" was stricken out contemporaneous with Pfeifer's signing, prior to the signing by the other directors, and several days prior to the consummation of the transaction by appellant's payment of the money to the coffee company. The cases cited by respondents do not establish a latent ambiguity under the facts here involved (consult Matthews v. Coalter,
No dispute exists as to the amount of the note or the correctness of the credit thereon. From what we have said, appellant, under the pleadings and the evidence, was entitled to have its request for a directed verdict granted. We, therefore, reverse the judgment and remand the cause with directions to enter judgment in favor of appellant and against respondents in accord with the provisions of the note offered in evidence, less the credit shown thereon. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.