La Belle Savings Bank v. Taylor, 69 Mo. App. 99

La Belle Savings Bank v. Taylor

69 Mo. App. 99 | Mo. Ct. App. | 1897

Bond, J.

Plaintiff sues for a balance alleged to be due it on a note for $1,319.80, dated December 14, 1888, bearing ten per cent interest after maturity, and alleged to have been made by defendants. The answer of defendant Joseph Taylor admits his signature to the note, but avers that it was made in the summer of 1888 by a mistake, which arose when he called at the plaintiff’s bank to sign another note as surety for his father, at which time the note in suit having been then handed to him, he signed it without observing it was not the note he came to sign; that the note in suit was executed by the other makers long prior to his signature, which was attached by said mistake and without consideration. He further answered, that without his consent, plaintiff for a sufficient consideration agreed with his codefendant to extend the time for payment of the note for one year. He further answered that the note in suit had been altered by a change of its date from the year 1886 to that alleged in the petition. William Taylor answered admitting his signature, but averring that without his knowledge the signature of his codefendant was procured to said note and that its date had *103been changed to that mentioned in the petition. The reply takes issue upon the averments of the answers. There was a verdict for plaintiff for $1,613.35. The defendants duly appealed to this court.

Promissory Note: evidence: frivolous objection. The first point made is that the court erred “in admitting evidence, written and oral, of the discounting of anote on December 24, 1888,” under the allegation of the petition that the note was dated December 14, 1888. This objection, as the record now stands, is frivolous. In the first place the discount of a note does not fix the date of its execution. It may be given on one day and discounted on another. In the next place the evidence complained of, if it could be held to point to a variance between the note referred to by it and the one described in the petition, should have been objected to for that reason, and the objection should have been supported by an affidavit as prescribed in the statutes. R. S. 1889, sec. 2096, et seq.; Salmon Falls Bank v. Leyser, 116 Mo. 68; Mellor v. Mo. Pac. R'y Co., 105 Mo. 471; Ridenhour v. K. C. Cable R’y Co., 102 Mo. 285; Olmstead v. Smith, 87 Mo. 602; Meyer v. Chambers, 68 Mo. 626; Fischer v. Max, 49 Mo. 404. The record shows that these steps were not taken by appellants.

Promissory Note. book entries: evidence. It is next insisted that the court erred in permitting the reading of entries from respondent’s books as to notes not signed by appellant Joseph Taylor. In considering this complaint it must be remembered that the onus of establishing the defenses made by Joseph Taylor rested upon him. In attempting this burden he adduced evidence tending to prove, among other things, the averments in his answer that the note in suit was dated two years prior to the affixing of his signature in the summer of 1888. In rebuttal of this *104proof respondent introduced the entries on its books tending to show that the note in question was a consolidation in December, 1888, of other notes running back for several years; that this was demonstrable as a mere matter of computation from the records of the business of the bank made when the notes in question were received by it, wherefore the note in suit could not have existed at the time appellant Joseph Taylor claimed to have signed'it by mistake, but that another note then existed, to wit, one for $1,256.95, dated' March 14, 1888, to which the testimony given by said Taylor as to his signature by mistake was referable. Respondent also introduced oral testimony that this note for $1,256.95 was signed by said Taylor in the summer of 1888. The effect of these book entries was to negative the testimony of Joseph Taylor and explain its proper application. They also serve to show the consideration of the note in suit, which respondent’s oral evidence tended to prove was signed by said Joseph Taylor on the day of its date, to wit, December 14, 1888. As respondent gave oral evidence tending to show that Joseph Taylor also signed the note which was renewed by the one in suit, it was not improper in rebuttal of his answer to show by the books of respondent the consideration of both of the notes signed by Joseph Taylor and the dates of their former renewals by corresponding entries made at the time on the books of the bank, which it was shown contained the entire record of the notes taken for discount. This ruling disposes of the first six points made in appellant’s brief.

promissory note: instructions. Appellants further complain of the first instruction given for respondent, wherein the jury were told that if they found the note in suit was executed by all of the defendants and delivered to plaintiff and discounted by it on December *10524, 1888, they should find for the plaintiff. There was no error in this direction. It did not ignore the defenses made. Each of these defenses was disproved if the note in suit was in fact executed and discounted on the day mentioned in the instruction. This was plaintiff’s theory of the case, and if true, necessarily overthrew the defenses set up in the answer. Neither was there any error on the part of the court in giving instructions numbers 3, 4, ánd 5 for plaintiff, whereby the jury were told that the burden rested on defendants to prove their respective defenses by a fair preponderance of the evidence. ’ All the defenses being affirmative in their nature, necessarily imposed the duty of establishing them upon appellants. In this case ten instructions were requested by appellants. It is conceded that some of them are duplicates of others. They are too voluminous to set out. Every defense available in this record was stated in the instructions given for plaintiff, and in the following given by the court in lieu of all of those requested by appellants, to wit:

“1. If the jury shall believe from the evidence that defendant, Joseph Taylor, signed the note sued on by mistake after' it was signed and delivered by William and Sylvester Taylor, then in such case the verdict should be for defendant, Joseph Taylor.”

“2. If the jury shall believe from the evidence that Sylvester and William Taylor signed and delivered the note in question and that thereafter defendant Joseph Taylor went to the plaintiff’s banking house and signed it, then in such case he is not bound by it, and the verdict should be for defendant, Joseph Taylor.”

“3. If .the jury shall believe from the evidence that defendant Joseph Taylor signed the note in suit, *106after it had. been signed and delivered by Sylvester and William Taylor, without the knowledge or consent of said William Taylor, and without being requested to sign said note, by said William Taylor, then the verdict must be for the defendant William Taylor.”

"4. If the jury shall believe from the evidence, that the defendants signed the note and that since its execution and delivery, that the date thereof has been altered, in such case the verdict must be for both defendants.”

Promissory note: instruction: extension: release of sureties: evidence. It is insisted that the above instructions do not embrace any declaration of law upon the defense that there was a definite extension of time for payment of the note upon a sufficient consideration without appellants’ consent. The answer to this is that there is no substantial evidence in the record of the essential features of such an agreement. The abandoned reply read by appellants is not sufficient to show a release on this ground, for it expressly states there was no consideration for the extension given. The only consideration claimed by appellants is that a note was given for a less rate of interest than that specified in the note in suit and was subsequently paid. It is evident that this note was less than the interest which would have accrued according to the face of the instrument sued on. It was therefore only a partial payment of interest and could not debar the holder from suing within the time specified. Unless the creditor is prevented from suing by an obligatory contract, his agreement to extend time of payment will not release the sureties on a note.

*107Promissory Note:alteration: om.s: jury question, *106It is finally claimed by appellants that the defense of alteration of the note is established under the evidence, because unimpeached witnesses testified that *107the signature of the father of defendants was in ms handwriting, and that tor more a y0ar before the date of the note he was physically disable to sign his name. The burden of proof of this defense was cast upon appellants. The jury may not have believed their witnesses. It would not have been proper for the court to have directed a finding on this issue for appellants, for the reason that the credibility of oral testimony must always be determined by the jury. Wolff v. Campbell, 110 Mo. loc. cit. 120. Finding no reversible error in this record, the judgment will be affirmed.

All the judges concur; Judge Biggs in the result.