*1 1921. TEEM, Vol. APEIL Hunt v. Sanders.
report his counter- first of each month. items reports, monthly says claim these included products for herein, farm sued nor were the sales of report- falsely except mules, and included, authority in law There is instead no ed at $155 $370. county contingent alleged fund, unless the for the expense money on the his warrant advance should going quarter, month month first of each quarter. suggestive things in the testi- There are some very say mony, there but suffices substan- it upon referee tial which the could have and did findings of out in base set the statement. Un- fact, his findings judgment der those should af- be, All firmed. concur. Appellant, v. B. W. E. HUNT,
MRS. W. SANDERS. 6, One, Division June 1921. Warranty. Negotiable
1. NOTE: Seller: NEGOTIABLE Under Law, and law Instrument at common before that statute was en- negotiable instrument, acted, any person whether the represents owner, principal, of an undisclosed genuineness signature thereto, although warrants appear name does not thereon. seller’s Forgery. -: In an -: -: action recover the plaintiff, telling forged an instruction notes sold amount jury forged mere that defendant sold fact is not sufficient to and deeds warrant notes finding against erroneous, defendant, law, for such is not the very If there are no other facts in the reverse of the law. but the notes and deeds trust were than that case plaintiff, under the them that defendant law, 1909) (Sec. and at common is liable R. statute amount of notes. Express Implied Warranty: Relying -: on Re- -:3. attempt presentations. his to submit Where does.not warranty, implied express only an but as on an 288 Mo.—22 OF MISSOURI, warranty, telling repre-
was immaterial relied defendant’s sentations, that he had to examine the *2 hy to him sold which latter fact was withdrawn from consideration, their not is erroneous. Despoiling Paper: Presumption: Wilfully 4. -: Instruction. de- spoiling justify against presumption a document will a law despoiler, that contents of the document were not as stated by application him. But such rule has no where the document destroyed opinion by was written an a attached to simply title, only dispute abstract which referred to and the parties opinions between the was whether said were addressed principal, to the defendant undisclosed his and none as to their circumstances, such Under contents. instruction not should presumption opinions tell the that the of law is that if such (cid:127) produced in were would be interest plaintiff, but if it at is be limited should creating opinions presumption to a were addressed principal, as claimed defendant. But where the evidence shows wilfully destroyed suppress that document was to evi- dence, to is error declare in an instruction that there is presumption Presumptions of law in reference thereto. of law disappear appear facts and when circumstances from which con- flicting may inferences arise. nothing unnecessary —--: 5. Burden Proof: Where Instruction. proven instructions, to to is stated in the other it is not error burden of instruct is “the necessary favor, ato in all the facts verdict his as defined instructions.” these Knowledge Forgery. -:6. Defendant’s is Where defendant forged plaintiff, him is the amount of notes sued sold it they testify permit error to that he did not know forged them, plaintiff purchased for some time after or that dealing principal forged paper. or had his undisclosed forged, that the notes were his Whether knew dealing forged principal paper, wholly irrelevant immaterial, plaintiff, petition he where good question. wise faith in calls his innocence Appeal Jasper Grant Circuit Court. —Son. Emer- Judge.
son, Reversed and remanded. n
VoL y.
Hunt appellant. H. Miller for S. the.plaintiff
(1) requested and.re- 8, Instruction held properly the law as declared court, fused many Thompson McCullough, de- 224, and 31 Mo. following. 1919, R. In Sec. fact, cisions why said instruc- fail same we to understand effect, in this It was refused. was admitted tion necessary plain- forged. signatures It is deed tiff to notes and show the defendant necessary even to recover. is not trust, order It the they the defendant knew show that forged at the time *3 guarantees signatures on the *4 special warranty part
on a on the the (5) of defendant. Instruction which is an E, instruction on the of burden Thompson proof, McCullough, is erroneous. 31 Mo. (6) permitting 224. The court erred defendant to testify Wilgus as to when he ascertained that was en- gaged selling forged in the business notes and deeds wholly of trust. This evidence is yet immaterial and prejudicial. highly - 1921.
Yol. respondent. Sheppard M.
B. (1) appellant’s is that the court next contention giving B. the This instruction told erred Instruction jury that sold the that the mere fact defendant plaintiff controversy and deeds the therefore that worthless said notes jury finding the not sufficient warrant is- was instruction was defendant. This ac- sues theory plaintiff which tried cord with behalf case and instructions claiming owned Plaintiff was that *5 MISSOURI, OF \
Hunt v. Sanders.
Sanders,
to the
addressed
would
proof
have been
almost conclusive
was
Sanders
opinion
upon
owner of the
hand,
the other
notes;
respecting
title were
was
this
addressed
Wilgus
at least a
circumstance to
and not
show
San-
voluntarily-
ders
had
owner
notes. Plaintiff
destroyed these letters.
all the authorities,
Under
proper
Instruction
under this
C
record was a
instruction.
Pomeroy
App.
Barker v. Pub.
152 Mo.
Co.,
717;
v. Ben-
Tracy
App.
v.
ton,
87;
Buchanan,
77 Mo.
167 Mo.
438;
Allomong
People,
App.
Dooley
v.
75 Mo.
v.
280;
'Green-
ing,
(3)
proper
proper, not know to he therefore, show that did dupli- forged engaged and the business long The transaction. notes until after this cate a time whether or only two issues are controverted plaintiff question as the owner not the principal. as the of an undisclosed Appeal Circuit from the Court SMALL, C. County. Jasper plaintiff to recover the
The sued the defendant paid negotiable notes, she him for certain amount purporting of trust, certain deeds also secured forgeries, and her, which slie claims defendant sold alleges, “pur- mortgages petition which notes and ported be, what defendant to be and warranted plaintiff' warranty relying be, believed such and forgeries, good” and but which were securities, valid and entire investment. lost her arising petition, each five counts in There were purchase one of out of the such notes. general
The denial. answer was a That and deeds of *7 ported by to be indorsed makers without recourse, Wilgus, all in and the notes were indorsed blank said without recourse. opinion
There was an of attached to plaintiff’s abstract, each husband said was ad- dressed to said but which defendant, defendant said was Wilgus. opinion plaintiff’s said This addressed to hus- destroyed long he band stated before suit was brought thinking and before known, consequence. parties of no further The of both opinions simply tended to show said that referred nothing said estate; title real about genuineness of the of deeds trust. testimony
The defendant’s tended to contradict the plaintiff’s particulars, in essential and to show fully pur- informed the husband, before he Wilgus notes, chased the said was the owner, and simply Wilgus that he, defendant, acted as for said receiving purchase money therefor. only That defendant was owner not such fact agent. such Defendant’s evidence also tended to know, did not and had no reason to know presume mortgages forgeries, the -notes and papers genuine not purchase owned said until testimony plaintiff To after excepted. objected Defendant also testified that he Vol.
Hunt v. representations what- or warranties made statement, purchased concerning plaintiff’s husband ever them when part Wilgus paid took himself for them. That delivered plaintiff’s husband and with the transactions instances himself. one or more *8 petition, applying in to all counts the instructions plaintiff: jury though the “6. The court instructs that even the of defendant was not owner the notes and deeds the any of at the or them time of purchased through agent, Hunt, her B. the W. same or purchase you any if find one of did them, the any them, or of from the same one that acting Wilgus, the for A. B. defendant was the yet shows that if the evidence failed to Jr., plaintiff’s agent prior or at to or disclose to the time tell acting purchase as the that for A. such of SUPREME COURT OP MISSOURI, y. Hunt -Wilgus, any B. or Jr., failed in to disclose manner plaintiff’s agent the that he owner of the the notes and deeds of trust the or mentioned ,of any that said notes and deeds of trust or them were A. owned B. Jr., said and that you purchased, deeds of trust so if find the same were purchased, signatures of makers forgeries, said notes and deeds of trust are as to purchased *9 Yol. y.
Hunt Sanders. principal, represents an and undisclosed gen- signature the instrument is that to such warrants though person the name of the the uine, even appear note.” on the instrument does not gave following at the re- The the instructions quest of the defendant: jury
“A. the mere facts instructed are E. the that the Sanders sold defendant W. plaintiff controversy in this case A. notes Wilgus, or before that at B. and time Jr., plaintiff or her were informed thereof, sale A. Jr., B. defendant W. E. told Sanders jury notes, should the owner find defendant W. E. in favor of the issues jury instructed the mere ”B. facts are plaintiff and the notes Sanders sold deeds that defendant signatures controversy and that of trust trust maker of said deeds *10 OF MISSOURI, y. Hunt Sanders. jury
“E. The court that the burden instructs proof in this case is to necessary a verdict in the facts to his favor, as defined preponderance greater in these instructions, weight of the evidence. And the terms burden of preponderance of evidence, as in used these does, not instructions, refer number of point on either but side, witnesses sworn that in means plain- credibility value the evidence sustain the outweigh that for the tiff’s case must defendant W. E. jury judges are the sole Sanders, and the of the credi- weight bility of the witnesses and value to respective given to their evidence, statements and if finds sustain the plaintiff’s outweigh case does for the defend- W. E. or that the evidence in ant, Sanders, behalf of the case and that behalf of the defendant W. evenly balance, E. Sanders then the must find in favor E. issues W. you you “And are further instructed find any wilfully falsely believe that witness has sworn any you may material fact this case set aside the any part of whole witness’s evidence. If the find “F. and believe from all the facts plaintiff’s agent and circumstances evidence that knew delivery at and before the sale and of the notes and of trust that defendant did not own deds the said notes of them, loans but was the same you A. B. will Jr., find the issues for may on such count or counts as the be.” jury found a judg- verdict defendant and accordingly. ment was entered a mo- filed being plaintiff appealed for new trial, tion but overruled, court. to this
I. The court should have instruc No. tion which it It 9, refused. is the statute law in Negotiable our State, since Law has Instruments Yol. effect, was the common law per time, ^is ^a^e Prioi“ (cid:127)
o^s^gnSure’ negotiable selling instrument, son Warranties. controversy here were, *11 by “Every negotiating person an instrument deliv- (1) by ery qualified warrants: That indorsements or respects genuine in all it is what the instrument (3) (2) good purports that he has a title be; it; (4)' prior parties capacity to contract; impair knowledge any fact of which would no the he has validity or of the instrument render valueless. But by only, negotiation warranty delivery the the when other in favor of holder than im- extends provisions The of subdivision transferee. three mediate persons apply negotiating public do not this section corporate than securities, other bills and or notes.” McCullough, Thompson v. 31 Mo. l. c. 225,
In court said: exceptions “The does show that bill by trial, at the in- was raised evidence. dealing structions, as defendants principals ap- agents. It merely notes as with the plain- peared they and that the bill-brokers knowing engaged them, them to be tiffs with dealt agency. There was no evidence, this sort other than acting agents they to show that fact, they they else; were, disclosed the one principal, plaintiffs gave name of their credit such circumstances are to him. Under defendants principals. held as to be appears very well settled that
“It the vendor responsible note, indorsement, without of bill paper. rep- genuineness He is considered MISSOURI, 350 OF signed resenting per note indorsed appear upon it in whose sons character; names signatures forgeries, are if these consideration [Young Womersley and others fails. and others, Reg. Judgment 328.] N. 502; 3 Am. Jurist, Law ’ ’ affirmed. Railroad, As in Kinlen v. l. c. said Mo. 163: “As proposition, opinion an abstract our correctly up and if there law, declares was evidence it then the base action of on which to the court in re fusing it error.” was reversible theorjr plaintiff’s'case, whole evidence and supported pleadings, said instruction. error given refusal not cured other its instructions plaintiff, expressly because did not and dis- predicated tinctly state that under the circumstances represented seller instructions, and warranted signature genuineness *12 plaintiff fendant sold the notes and deeds ^rus^ n0^ sufficient to warrant Forged finding against the defendant. Such is not Notes. very the law. reverse is the law. If there other facts than that the notes' and of trust deeds and that the defendant plaintiff, them to the defendant under said sec (Sec. 1909), tion of the statutes R. S., and the common laAV,would liable, because the mere fact'of by sale absent all other evidence as to sale, a would mean sale as owner, as principal. an undisclosed objected by appellant
III. It is also that the court gave erroneously defendant’s Instruction D, Avhichtold that was immaterial that husband TEEM, Yol. APEÍL representation, or that he relied on defendant’s had no papers, examine which , , , , Representations. (cid:127) latter fact was withdrawn from their o n agree by respondent’s as consideration. We stated plaintiff’s petition counsel, learned was based upon by warranty genuineness a of the paper showing could establish sold, express implied warranty warranty. an or an either jury, Plaintiff in her to the instructions however, did express upon warranty, the case an not ask submit as implied warranty simply on the but raised the law in paper case the sold the as owner or as principal, making any express of an undisclosed without warranty. express In warranty, case defendant made plaintiff, be liable to the he would whether or not principal. agency [Wilder his or his disclosed v. 487.] Cowles, 100 Mass. l. Had c. submitted her express warranty, testimony on an case as excluded might competent, have been which, we however, do not pass plain on, as it is not us. But, before inasmuch as attempt express tiff did to submit her case as on an warranty, testimony we think the excluded had no bear implied ing- warranty on the plain which alone the her, tiff did submit case, cannot com plain point of this instruction! must We this rule against appellant.
IV. Instruction C, for defendant, was er wilfully roneous. It despoiling is true that a document justify presumption would despoiler, of law
that contents the document stated adversary. but him, his PaperÜU1S . [Pomeroy v Tracy Benton, 77 Mo. 87; App. Buchanan, 167 Mo. only 438.] case, In dis pute parties between the destroyed as whether opinions, Wilgus were addressed to said defend *13 dispute ant. There nowas as tó their contents. Had they destroyed by wilfully been or her hus- MISSOURI,
352
OF
SUPREME COURT
only legitimate
law,
a matter of
as
inference,
tbe
band,
they
against
were
been that
ad
have
would
Wilgus,
that-they
other
not
contained
to
dressed
plaintiff’s
it is not
case—-which
detrimental
to
matter
they
the said instruction was
did contain.
If
claimed
creating
proper
to
limited
have been
at
should
all,
against plaintiff
presumption
opinions
defendant,
claimed
to
addressed
broadly
if
stated
documents
should
have
produced, they
in
would
been
have
in this
But,
think,
case,
we
terests
where
opinions by
explanation
of the destruction
to
him,
true,
testified
husband,-
shows
destroyed wilfully
suppress
to
evi
for the
to declare in an
error
in
dence, it would be
any presumption
jury that there was
to
struction
when
thereto, because,
reference
facts
with
law
conflicting
appear,
may
inferences
circumstances
presumptions
disappear,
of law
therefrom,
and it
arise
weight
pass on the
for the
credibility
view all
witnesses,
facts and
any suggestion
case,
without
circumstances
court in its
instructions as to
comment
such
presumptions.
[Mockowik v. Railroad,
sary a verdict in -his favor, defined preponderance greatei these instructions, weight of evidence.” proper, think this instruction
We as there was nothing (which contained in the other instructions instructions) stated be necessary for the *14 Vol. not prove, which was recover, in order respect, it differs
necessary prove. this In to so her which the burden on Supreme of Mas- gave, Court hut lower Cowles, in case Wilder criticized sachusetts supra. objection, the defendant was
VI. Over permitted testify until sometime after it was question purchased that he deeds of trust were person negotiated. is that when a sells law principal, owner or for an undisclosed note as
Notes
the and warrants regardless. may genuine as to the facts be forgeries of what Sparkman, v. 75 Mo. or otherwise. Stewart Ry. 216 Mc- App. Co., v. Mo. 163; Kinlen Street 109; v. 29 Jackson 582; Railroad, v. 109 Mo. Railroad, Rue Bayler, App. App. 302; 495; v. 27 Mo. Hannah Mo. App. Sawyer Mo. Wilkinson, 1; Drake, 31 v. v. Meredith (2) B'given App. in- 472. at Mo. Instruction the request clearly erroneous. of defendant is stance the and plain- If shows defendant Sanders sold the evidence in controversy, of trust and that the notes deeds tiff prima-facie plaintiff forged, makes out a plaintiff not on burden of is to show case. Wilgus. acting agent If as the defendant acting as is the part no of defense and a matter cause McCullough, Thompson 224; v. 31 Mo. Sec. action. the statutes covers this whole section of R. Said clearly Instruction B as brands said erroneous. ease, given by (3) instance at Instruction C only erroneous but is request is also destroyed opin- of the documents Some vicious. MISSOURI, OF Hunt given by Dewey con- title the land ions veyed by Mr. as to the only mortgages question. The evidence proposition husband of on this is plaintiff destroyed opinions these the effect he shortly got he after knew loans before forgeries. There no evi- notes and of trust is deeds contrary. course, dence As a matter of Mr. nothing forgery he‘destroy- time Hunt knew at opinions, no ed there would be call said instruc- presumption Certainly tion. could arise the interest of an individual a matter of this kind un- entirely he knew the less facts. Said is too sweeping and is not vicious and based the law and justified facts is not case, view- point. destroyed In the documents event should be appears material no-, documents. word material (4) wrong where in the instruction. Instruction D is ought to have been refused. The main issue in this aswas to whether the defendant or not sold the notes principal. as owner for an undisclosed dispute There but that the defendant negotiated loans. The defendant himself admits that practically much. D Said argu- cuts off all Instruction may ment to what the defendant Sanders have said told her husband at time of the trans- Clearly actions. .what may Sanders have said at the time transactions and at the time he de- the notes to livered and received the checks though even therefor, evidence, this suit is not based
agent prin- of an he- them as undisclosed or that petition alleged cipal. warranty upon Plaintiff’s had plaintiff part which could Lave been established by proving expressed warranty, implied or an either warranty. evidence discloses there Plaintiff’s was an warranty. express This denied asserting that he told he was Wilgus. Under this the notes state of the clearly necessary for the it was find that record question notes in sold the the defendant as owner principal. them as an undisclosed he sold phases by of the case were covered two These required instructions, to find that de- notes to the sold these as fendant owner principal. necessary It undisclosed of an acting either to find that Sanders was for the acting prin- for an himself he was undisclosed having cipal, disclosed, all the and, facts there was any presumption arising any room for from the mere If there had not been evidence as fact sale. time and done at what was said might there sale some merit in contention. But where appear, presump- there is not room for all the facts Jaynes, (2) 193 W. Brannoek v. evi- tions. attorney’s opinion shows dence importance, if, because contends, of vital
trust seriously contested defendant at the trial. allega- evidence tended to petition, and show her- tions purchase part in the notes, took no but that self repre- purchased them from the husband her agent. senting her That husband testified: defendant Plaintiff’s City estate, which him the real showed purported purchased Joplin, by the notes to be trust, witness to de- secured deeds of said purchased the notes he before he did not fendant right papers not, were all if know right they he were all would take the defendant knew they not, he did want them. but That loans, papers absolutely good are “I know said, you [plaintiff’s need not be worried husband] OP MISSOURI, Thereupon, relying moment about it.” de- gave fendant’s husband de- statement, payable fendant checks full amount to defendant notes, and received the notes and deeds property abstract of That defendant. nothing representing Wilgus, defendant said about A. B. Jr. That asked whether he witness get papers,. better to examine the necessary, good. absolutely said was not purported notes and deeds of trust be made dif- parties parties, including ferent to the order of different pur- two and the notes not made to him
the re- at follows' court instructed quest plaintiff, first count: of the you if find and “1. The court instructs - in this case that defendant, from the evidence believe 23, certain dated June sold to note owner, a principal purporting $1,500, to have sum of signed by E.. Schmidt, H. and Lola Alvin Schmidt been purported to have secured a note and which said eighty trust numbered Schiffer- of lot deed City Joplin, Addition to Second decker’s forgeries, you will deed said note and are plaintiff, of the on the first count issues favor find damages petition, at the her sum and assess paid exceeding note, $1,510, for said the sum per per thereon the rate of six cent an- with interest at from date demand num you therefor you and if there find there was no demand, find filing suit,, to-wit, then fr-om the date Decem- demand, 20, 1918.” ber given applying Similar instructions were each of petition; general following the other counts
deeds of trust so and sold as you will aforesaid, find issues favor of “7. court instructs the that where a deed given covering pay- of real trust is estate secure the promissory of a and the ment note note is transferred by indorsement, such transfer of note carries with security. it the “8. The court if instructs the evi- controversy dence shows that this case notes in pur- any herein, or one of them, at the time the you plain- any chased the or same, if them, one find purchase any tiff did or one same, of them, say, blank, indorsed that is the indorsement was payee of or made last the note indorsee there- by simply writing his across name the hack thereof, you nothing further find that there was said presence hearing plaintiff’s agent or W. B. Hunt, any who as to owned or notes, said one of them, plaintiff’s agent knowledge had who was the prior purchase plain- owner, at or time of such you purchase, tiff, if find was such there of said notes, any of them, one and that the defendant at the time purchase of said notes, them, one possession notes, one them, and had plaintiff’s agent, plain- delivered the same to then the right presume tiff had defendant the owner of indorsed, such note so sold and delivered.” give following The court refused requested plaintiff: by the any person “9. instructs the negotiable who sells whether as owner instrument,
deeds are that said are not sufficient warrant worthless, now against finding in this issues the defendant E. Sanders. W. The court instructs find “C. plaintiff evidence that the her believe acting her,'destroyed any docu- who husband, question, pre- relating to the transactions ment produced sumption document were that if is the interest in evidence would offered question “D. The is instructed husband relied not the her represented what he is im- as to Sanders the defendant are instructed that You further in this case. material not or her did have an husband fact that papers attorney ma- to examine the evidence of case, and that terial examine have he did to the effect your papers withdrawn from consideration.
principal, repre an undisclosed owner, signature genuineness and warrants the sents although appear name does not the seller’s note, the note. as follows: 1909, Section Revised Statutes
distinctly have should so informed court. II. Instruction B for the defendant er roneous. It tells the that the mere fact that de
- Wilgus forged, or that knew dealing papers. Error ^een Knowfedge'S ruling. assigned account of We is Forgery, assigned. wholly think it It was irre is well immaterial to issue levant and paper did or when defendant not know the knew forged paper. forged Wilgus dealt Defendant’s good way in the matter innocence or faith petition, in her and it called way constituted a defense it in no cause testimony complained improperly of was action. admitted. reversed and Let the case remanded for a new expressed. with the views herein trial in accordance It Ragland, C., concurs; Brown, ordered. C., so sitting. opinion foregoing’ PER CURIAM: The by Small, opinion adopted court. All C., judges concur. 288 Mo.—23