10 Mo. App. 432 | Mo. Ct. App. | 1881
delivered the opinion of the court.
Plaintiff presented for allowance against the estate of Bohn certain demands, which were allowed and placed in the fifth class. On trial anew in the Circuit Court the following allowances were made, and were all placed in the fifth class: —
1. On a note of Godfrey for $3,600, payable to order of Million, one year after date, dated August 24, 1874 — $132.59.
2. On a note of Godfrey for $3,600, payable to order of Million, one year after date, dated August 24, 1874 — $132.59.
3. On a note of Bohn for $324, to order of, and indorsed by himself, assigned by Cummiskey to plaintiff, dated August 24, 1874 — $368.91.
4. On a note of Bohn for $324, to order of, and indorsed by himself, assigned by Cummiskey to plaintiff, dated August 24, 1874 —$385.11.
5. On a note of Bohn for $9,000, payable three years after date, to order of and indorsed by Thomas Turner, trustee, dated February 22, 1876 — $4,733.26.
The notes made by Godfrey, were secured by deed of trust on real estate which had been conveyed by Godfrey to Bohn, subject to the deed of trust. The amounts allowed on these notes were the balances due, after crediting proceeds of foreclosure. The large note made by Bohn was-also a real estate note, on which a balance was due. The-smaller notes made by Bohn were for interest.
Cummiskey testified that he was the holder and owner off the two Godfrey notes, and of the two smaller notes off Bohn; that he purchased them of Ghio before maturity ;; that he directed the foreclosure; and, after the foreclosure,, assigned the notes to Million, on the agreement that Million
The court refused an instruction to the effect that if plaintiff had the notes assigned to him under an agreement by which he was to sue on them at his own cost, and if successful in recovering any amount, to divide the proceeds with the assignors, and if not successful, the assignors were not to bear any of the costs and expenses, and that this was the only consideration of such assignment, then plaintiff cannot recover.
It did not concern Rohn whilst living, and it does not, now that he is dead, concern his legal representatives, what consideration Million gave for these notes. Cummiskey owned four of the notes, having paid value for them ; and the other note was owned by Turner under like circumstances. The indorsee of a negotiable note must prove that the note was made;
We think the judgment should be affirmed. It is so ordered.