*1 1098 on this $46.26 petition had
error. The states that defendant had allegation petition shows claim. This it. paid part of liability had particular claim and admitted general performance rule part part least and the That was at its by performance part contract is that there has been a when by accepted party, the other party party one has been accepting so must stand cannot thereafter rescind the contract but it. right recovery and his breach of must based [13 171; v. 666; C. 108 Miller 615, Rader, J. sec. Kauffman v. Fed. 70 N. Palmer, W. Wis. 659.] with- by appellant why as There are statements counsel for recognized drew from the ease and was afterward counsel certain defendant and also counsel for as to statements delay agent threats of made an defendant but none preserved bill exceptions in the and hence be considered cannot exceptions us. The bill contains the motion for new trial but nothing else. Since prove the motion for new trial itself does not nothing there is proper. before us but the record The error which we have petition judgment noted shown which are parts of proper record and a.re here for our consideration. judgment will be reversed and the cause remanded.
Bailey and Smith, JJ., concur. Bank Farmers of Billings, a Corporation, Appellant, v. Frank Respondent.* Schmidt, Springfield In Appeals. Opinion February Court filed 1930. *2 39; Juris-Cyc Actions, 1CJ, * Corpus 52, p. 958, n. References: section 876, 78; 8CJ, 4CJ, 2853, Notes, Error, p. Appeal and section n. Bills and 70; 1064, 43; 409, p. 1299, p. 995, 1378, p. n. n. section section section 81; Evidence, 22CJ, 837, p. n. 63. section n. appellant. J. W. Massey Gordon and F. Barreit *3 respondent. Farrington & fívrtis for Trial COX, upon promissory $965. J. Action a note P. appealed. Plaintiff
court who found for defendant. reported is appeal The first This the second in this case. is answer The form. petition S. W. 156. usual The of consideration pleads admits the of execution the note and want plaintiff. and that was for the accommodation executed specific allegation of The reply general coupled with an was denial alleged reply for the answer and note. Both the support upon they relied details to show the which facts contentions. of consideration upon
The burden was want to show theory. The material note and case tried was Hardware Billings facts shown evidence as follows: Company, corporation was a stockholder in which defendant sum of director, upon in the *4 poration. appear to expecting he That was a state bank examiner any at have the time to examine the bank and he was anxious to - apparent before company indebtedness of the hardware reduced thought com- should arrive. hardware examiner That he pany examiner, solvent order help and in to him out with the bank suggested company that each of five of the hardware directors reduce the execute a the bank and that would $2000 note to for apparent $4000, of company of the to the amount debt hardware bank, carry bank could that amount to the and the overdrafts company to the under the law. That he would look hardware any payment expect and not from payment of these notes would signed parties request purpose who them. At and for the pass to accommodating enabling bank it examination without company directors of the hardware each executed criticism, the five on $2000 time. Entries were a note the bank for made to $10,000 in the hard- accordingly books of bank but the notes paid bank nor company ware to the were not at that time marked The hardware company. hardware to the they surrendered were $2000, which note for its of these directors to each company executed was done show, tended to contended, and his evidence defendant expectation any without and transaction merely show the to to company was hardware paid. The to were ever notes these hardware discharge the would and that to the bank their notes pay renewed was note That defendant’s company’s notes them. to only to the look to the cashier promise renewal the same at each the hardware That payment was made. company hardware paid never defendant notes and company paid interest on these hardware anjdhing. Later the pay anything not to and was asked money against raise the stockholders to company an assessment made proceeds paid and with were pay to its debts. These assessments of the hardware com- directors all executed these of these notes paid in except were full and pany the bank defendant’s notes paid for which $955 note. This left $1045 was defendant’s payments were made brought. time these this suit is At the marked company to the bank ivere notes the hardware facts, company. On these over to turned the hardware sitting jury for defendant. found peremptory was instruc
The asked for and refused gave plain tion find for of law for it. court then a declaration tiff if notes of these as follows: “That court should find given directors to reduce the indebtedness were the bank order company company hardware the hardware to the and the bank, accordingly obtained its note to the then the credit on based valid consideration and the court plaintiff.” should find for the if
“That notes of company these the directors the hardware were given company accommodation of received notes, credit on its amount of debt to the bank then that furnished a for these consideration notes.”
“That if the of these company *5 peremptory Tf the plaintiff instruction find for properly refused, given the other of law that were declarations were correct. appellant assignments relies three of points error or for judgment a reversal: that First, the -was for the wrong party
1103 defendant of contention is sustain there no evidence because for and was without note sued on that plaintiff. of the accommodation and under by the court declared under the law as That Second: there because plaintiff for been finding have should the facts the issues found could have from which court evidence nowas for defendant. defendant in permitting “The witnesses erred Third: company as the hardware paid by notes were testify that the hardware look to
proof fact would of the that the not fact could when that question note in of the payment by facts.” of similiar proof other be established assignments peremp- that a two to a contention The first amount given. The have plaintiff should been tory declaration to find for to the testimony of effect assignment to the third relates admission other than notes of that the company. We shall defendant's were first. assignment last notice the point proper prove at issue “it is
Appellant that not asserts transacted showing similiar acts in the trial a ease that were although to the other such parties persons suit and between one support may have transaction.” this acts arisen out same To eases is proposition a number of were cited. first one cited Pyrtle Company, 172, by v. International Shoe W. the St. S. alleged of Appeals. plaintiff Louis Court In that that case he had a contract of employment with defendant which he was entitled corroborating As testimony to a bonus. the terms his as to defendant, employees with contract two other were defendant permitted they testify employed by were defendant plaintiff they same time worked and that received bonus. ground This was held error the employment of each of separate parties was a distinct contract and neither had any In discussing question relation to the other. the court page brought upon said at special agreement “where a suit is where, as here, employment laid is individual and in no way employment connected with the employees, entirely of other it is agreement case may outside the as to what have had with employee. other any Such contract another employee could in no way question affect agreement between and de- ’’ A number of other cases cited which affirm the fendant. saíne on the The rule based fact that the independent rule. acts are proof other reason one prove each not does the exist- Manifestly other. ence. of the the converse of this must also be where, ease, true and acting together all they concert so presumed fairly giving it can that of the note
1104 the by dependent the other directors
in suit
defendant was
purpose
same
giving
notes for the
company
their
also
show the
competent to
it is
the whole transaction becomes one and
tending to show
payments as
who made the
transaction and
entire
given.
were
the
notes
understanding
parties
the
time the
at
purport
to defendant’s evidence. The
to the demurrer
As
given by these
were
this evidence
to the effect
these notes
that
purely
for
accommodation
the hardware
they would not
specific understanding
and with a
that
reason
by
pay
be called
them. The bank’s
the bank to
asking
expected to make
use it
this accommodation and the
of these
of the bank -as
place
notes
them in the note case
was to
part of
its
and withdraw notes of
assets
in
by
in
the same amount
to
criticism
examiner
order
avoid
he
appear.
should
We
to
Kansas,
when
are cited
in
cases
there
in
states,
party giving
cases
other
hold that a
to a
in
deceiving
in
cannot
order to assist it
the bank examiner
against
though
ground
defend
it on the
no
even
agreed
payment
it was
at
that the
expect
the time
bank would not
has, however,
the note.
It
differently
been held
in this State
Supreme
Chicago
our
&
Brady,
Court
165
Title
Trust Co. v.
Mo.
197,
to be no benefit bound received taking these notes makers of the The other contention is amount for the same to themselves the the notes hardware If it true the bank. received a consideration for their *8 Corpus Juris-Cyc Divorce, 19CJ, 43; 149, p. 73, References: section n. * p. p. 73, 150, 45; 220, 82; p. 94, 367, n. section section n. section n. 53; 473, p. n. 9. section indebted to bank was $10,000 indebtness making a $4000, and on total overdrafts of the $14,000. According testimony, cashier to defendant’s company to make hardware called the directors provision by the books showing some which be made on could would this indebtedness five in num- company, be ber, lowered. hardware the bank defendant, which included with the cashier of met then to them stated amount the indebtedness amount to the bank and stated that more cor- person than or the bank was authorized to loan to one
Notes
directors the hardware given were to the consideration for the notes of the hard- them, ware then was a valid consideration.” converse, of these declarations to the if effect that this note and the notes of the other were given solely for the accommodation of the bank and with no other them, passing they then were without consideration finding defendant, should be for behalf of defendant.
not collectible the bank. To our mind fact that the cashier purpose stated to of these notes the for which makers they purpose were to purpose be used and that was an unlawful could no make difference as between them and the bank. relation parties changed by between these and the bank was not the unlawful purpose of the cashier of the purpose bank. Had the been a law- one, ful as relation between themselves would have remained the same. the viewpoint From these parties assisting the cashier in perpetrating wrong deceiving the bank examiner, we must generally hold the authorities conclusion for the same reach them will leave particeps criminis parties that between wrong own as means neither can use finds them and where it sought party especially where the true impose on the other and this is transaction. unlawful from the
in fact themselves company to from these notes the the executing notes to their for their furnished the consideration defend-, evidence position bank that would be sound but nothing to do with notes had ant was to the effect that merely to executed notes to the bank but were execution being of them any expectation without the transaction and show they did not furnish a consideration paid. true, If then that were Bank Walterschied, v. National the bank. for the notes to [Central ] 222 S. W. App. 179, 204 Mo. 912. question in in were whether the note of fact case The issues for the accom- the bank or given for accommodation was Company. evidence Billings There was Hardware modation pro questions. The of law con on these declarations and tried wdiich shows that court properly declared the law court theory. finding His on the facts therefore on the the case correct binds us. judgment will be affirmed. Bailey Smith, JJ., and concur. Rehearing. Motion On admitted respondent rehearing appellant insists On motion for divi- part of a kept he had collected the witness stand that on upon his note bankruptcy in by him from the trustee dend received accept not could insists that he Company from the Hardware him and Company of the Hardware payment upon the note As we paid. to be was not contend that said the same time note toas character not of such a testimony respondent view the intentionally he collected and necessarily amount to an admission bankrupt estate trustee of the retained dividends Com- given Hardware to him the Company Hardware note testified in sub- with the transaction. He pany in connection bank Company of the Hardware of this note presentation stance that the against Hardware bankruptcy him allowance upon his own of the bank and not Company request was done at against of his own the Hardware Com- account. He also held a note against him and when pany $635 allowed to estate was paid he one check to cover the dividends dividends were sent was re- bank dividends attempted pay both notes to the con- Company him Hardware ceived on the note.of on the nection retain dividend with note to the any other note to him. that he did not intend to retain This shows part received on the connected with the the dividends question regard transaction as his own. of his intention in that clearly question jury. rehearing The motion for will be overruled. Bertha Tebbe, Appellant, v. Frederick Respondent, Tebbe, Re- Appellant. (2d) 21 S. W. 915. spondent, Opinion Appeals. Louis filed St. Court of 1929. November