167 Mo. App. 79 | Mo. Ct. App. | 1912
This is an action on a negotiable promissory note for $1385, executed and delivered by •defendant to the Farmers & Merchants Bank of Sturgeon, Missouri, March 21, 1904. The note matured one year after date and plaintiff claims that.he. purchased it for value before maturity, is its legal owner
Plaintiff filed a reply in which he admitted “he filed his petition and' schedules in bankruptcy” in April, 1907, and alleged that at that time he was not. the owner of the note. At the beginning of the trial he filed a motion that defendant be required to elect on which of his alleged defenses he would rely, the-theory of the motion, being that the several defenses-set up in the answer are inconsistent. The court did not take this view of the answer and overruled the-motion.
After the jury were sworn, plaintiff asked the-court to rule that the burden of proof was on the defendant but the court held that the pleadings cast this-burden on plaintiff. At the close of the evidence the court gave a peremptory instruction to the jury to return a verdict for defendant, whereupon plaintiff' took an involuntary nonsuit with leave to move to set it aside and in due course of procedure brought the-case here by appeal.
The facts of the case are as follows: Plaintiff and defendant are brothers. In 1904 their Mother, who-was wealthy and a person of acknowledged business capacity, was the president and a large stockholder of' the Farmers & Merchants Bank of Sturgeon, an incorporated bank. -Plaintiff was the cashier and managing-officer of the bank and owned stock in it of the par value of $9600. He owed his mother $2500, borrowed money, and had given her his note to evidence the in
Mrs. Long left a will in which she charged plaintiff with advancements in.the sum of $6500, and de
First. The motion to elect was properly overruled. The rule is well settled that two or more defenses are not deemed inconsistent in a legal sense except where the proof of one necessarily would disprove the others. In an action on a promissory note a plea of payment is not repugnant to a plea of non est factum, since men sometimes pay demands for which they are not liable. [Nelson v. Broadhack, 44 Mo. 596; Bank v. Stewart, 136 Mo. App. 24; Gaar v. Black, 120 Mo. App. 181.] Nor can it be said that the defense interposed on the ground that the assertion by plaintiff of title in the note would be in fraud of the bankruptcy law would, if proved, disprove the two other defenses that plaintiff at no time owned the note and that defendant had paid it.
Second. The court did not err in refusing to cast the burden of proof on defendant. It is true a plea •of payment is an affirmative defense and that the burden of pleading and proving such defense lies with the defendant, but the pleadings put in issue the title of plaintiff to the note; that fact was elemental to his cause of action and it devolved on him to plead and prove it before defendant could be called on to establish his affirmative defenses. [Dunlap v. Kelly, 105 Mo. App. 1; Discount Company v. Becker, 138 Mo. App. 54.]
Section 1112, Revised Statutes 1909, provides that the cashier of anj incorporated bank “shall have no power to indorse, sell . . . any notes ... received by said corporation for money loaned, until such power and authority shall have been given such cashier or other officer by the board of directors, in a regular meeting of the board, a written record of which proceeding shall first have been made . . . and all acts of indorsing, selling, . . . done by said cashier, . . . without the authority from the board of directors, shall be null and void. ’ ’
In Vansandt v. Hobbs, 84 Mo. App. 628, we construed the statute to denounce as void and not merely voidable any act of a bank cashier in violation of its provisions. The St. Louis Court of Appeals in Hume v. Eagan, 73 Mo. App. 271, held that the true intent of the statute was to make voidable an act in contravention to its provisions and than an unlawful ¿ct of the cashier could be vitalized by a subsequent formal ratification by the board of directors. We think this view of the statute, if countenanced, would have the effect of setting at naught its controlling purpose and would open the door to the very evils the Legislature in
The judgment is affirmed.