Hill v. Coombs

93 Mo. App. 264 | Mo. Ct. App. | 1902

SMITH, P. J.

— This is a suit by plaintiff against defendants on a promissory note. There was a trial in the circuit court where the defendants Coombs and WTdte had judgment. Plaintiff brings the cause here on writ of error.

There were special findings of fact and conclusions of law made by the trial court which were incorporated into its judgment and which are as follows: “The court- finds that the defendants, Lee Blakemore and Annie R. Blakemore, are indebted to plaintiff on the note sued on the sum of six hundred and seventy-four dollars, for which sum judgment is hereby rendered, with interest thereon at eight per cent from this third day of July, 1897, in favor of plaintiff and against defendants, Lee Blakemore and Annie R. Blakemore.

“The court finds that the note sued on, while in the possession of the payee, Lee Blakemore, was offered for sale and shown by him to plaintiff before the names of defendants Coombs and White were indorsed thereon; that plaintiff refused to purchase the same without other names being added and written on the same.

“That thereupon said Blakemore went to defendants White and Coombs and requested that they write their names on the same, and told each of them at the time that he wished to raise money on the note. That Coombs and White thereupon wrote their names on the back of said note, sometime after the note had been executed by the maker, A. M. Ready, and delivered to the payee, Lee Blakemore, to enable Blake-more to raise money on the same, and without consideration moving to said White and Coombs or either of them. Thereafter, on January 8, 1896, said payee indorsed and sold said note to- plaintiff for the sum of $500, writing his name on the back of said note after all the others.

“The court finds that said White and Coombs are neither of them liable on said note as makers or indorsers, and can not be held in this case as guarantors, but this without prejudice to the'right of plaintiff to sue defendants White and Coombs in another suit upon proper allegations.

“The court renders judgment against- the plaintiff and for said defendants White and Coombs, and that said defendants White and Coombs have and recover of and from said plaintiff their costs in this case incurred and expended, and have execution therefor.”

We think that the conclusions of law as stated by the court were unauthorized by its findings of facts, and were, therefore, erroneous. The consideration which passed from plaintiff to Blakemore, the payee and holder of the note, was sufficient to sustain the collateral promise of the defendants Coombs and White, the guarantors. Adams v. Huggins, 78 Mo. App. 219;

And the further conclusion that the defendants being guarantors could not be joined with the payee and indorser seems to be contrary to what was ruled in Maddox v. Duncan, 143 Mo. 613.

It results that the judgment must be reversed and cause remanded.

Broaddus, J., concurs; Bllison, J., not sitting.