78 Mo. 550 | Mo. | 1883
This is an action on a promissory note for $500; and the petition, which is in usual form, alleges the execution and delivery of the note by defendants as partners under the firm name of Demuth & Malcolm.
Defendant Demuth made default, and defendant Malcolm answered, denying the execution of the- note in suit ' in the firm name of Demuth & Malcolm, admitting defendants were, on the 8th day of June, 1878, a firm doing business in Rolla, Missouri, under the firm name of Demuth & Malcolm, and pleading that the note in suit was executed by Demuth in the firm name, in fraud of the rights of the firm and of the defendant Malcolm, without his knowledge, consent or authority; that no consideration moved either to the firm or defendant Malcolm, but the sole consideration for said note was the payment of a private debt due from Demuth to plaintiff, and was executed, not for the purposes of the co-partnership, but for Demuth’s private debt and in payment thereof, and that plaintiff knew of all said facts. To this answer there was no replication.
But two witnesses were examined, viz., defendant Demuth, on the part of defendant Malcolm, and plaintiff in
The evidence of plaintiff in rebuttal fended to show that plaintiff had business transactions with the firm of Demuth &. Malcolm; that in June, 1876, Demuth asked plaintiff if she had money in bank, and told her that the firm could use it, and she could have it back in six months; that he came to her a feAV days after, and she gave him a check for between four and five hundred dollars, and he gave his note to her for the same; that she did not read the note at the time; that afterward, about Christmas, 1877, she learned for the first time that the note was signed by Demuth alone, and told him he ought to have signed it in the firm name; that she had confidence in Demuth; was of Erench descent and could not read English readily; that she requested Demuth to sign the firm name as soon as she learned it had not been so signed; that the note in suit was executed about six months afterward, and nothing Avas said at that time; that she loaned the money to the firm, and
It may be true, as contended by counsel, that if plaintiff had sued the firm on the note executed by Demuth alone, under the ruling of this court in the case of Farmers’ Bank v. Bayless, 35 Mo. 428, that the action could not have been maintained. But that is not this case. The plaintiff, instead of affirming the note executed by Demuth in his own name, as soon as she ascertained that it was so executed, repudiated the transaction and required of Demuth the execution of a firm note, not in payment of his, Demuth’s, own note, but in conformity with the real facts of the case and the understanding of the parties at the time the loan was made. The instructions given in the case were in conformity to the views above expressed, and those refused were not. Judgment affirmed.