221 Mo. 330 | Mo. | 1909
This appeal is from a judgment of the Jackson Circuit Court in favor of defendant.
On June 26, 1902, the appellant, Nevius, filed his petition against the respondent, Moore, in the circuit court of Jackson county, Missouri. Summons was issued and served on Moore the same day. An amended petition was filed on the 27th day of January,
The second count of the amended petition is based on a note dated January 15, 1889, given by Joseph J. Baughman to respondent, George T. Moore, payable three years after date, secured by a deed of trust on lots nine, ten and eleven, block fifty-two, in Oentropolis, a sub-division of land in Jackson county, Missouri, which note was assigned and transferred to Nevius before its maturity. The allegations of this count are in all things similar to those of the first count, except that this note was not pledged to secure a loan; alleges that interest was paid on said note up to and including July 15, 1892, and alleged in original petition to have been paid up to January 15, 1892; alleges that Moore had the deed of trust foreclosed and purchased the property in his own name. Prayer, similar to that contained in the first count.
The third, fourth, fifth, sixth and seventh counts are actions at law against Moore as indorser, each based on one of the foregoing five promissory notes. Each count alleges presentment, demand, refusal to pay and due notice to Moore as indorser.
Answering the various counts of appellant’s petition respondent admitted the execution of the notes, their ownership by Nevius, the foreclosure of the various deeds of trust, etc. Denied that he practiced or contemplated any fraud against Nevius. Offered to deed the Baughman property to Nevius, which deed was made and accepted. Further offered to deed to
This sufficiently indicates the nature and character of the pleadings as well as the issues upon which this cause was submitted to the trial court.
The evidence developed upon the trial was substantially as follows:
On August 9, 1887, Eliza J. McClellan executed and delivered to George T. Moore her four promissory notes for four hundred dollars each, payable three years after date with interest at the rate of ten per cent per annum from maturity. Semi-annual interest coupons amounting to $96 were attached. To secure the payment of said promissory notes four separate deeds of trust were executed by said McClellan, and one R. L. Yeager was made trustee therein. These deeds of trust were duly recorded on September 29, 1887, in the recorder’s office of Jackson county, Missouri.
On January 15, 1889, one Joseph J. Baughman executed and delivered to George T. Moore a note for $750, payable three years after date, with interest at the rate of eight per cent per annum, payable semiannually. This note was also secured by deed of trust on certain lots of ground made to R. L. Yeager, trustee, and duly recorded in the recorder’s office in Jackson county, Missouri, on the 18th day of January, 1889.
Afterwards and before the maturity of the five notes above described, they were purchased by the appellant from the respondent, Moore. Nevius claims that they were indorsed on the back by Moore. Moore claims that he does not remember whether he indorsed them or not. Nevius at the time lived in the State of New York and Moore in Kansas City, Missouri.
As to the interest on the Baughman and McClellan notes Nevius testified: “The interest on these notes, together with others, was being collected semiannually and paid to me by Mr. Moore.” A letter from Moore to Nevius, dated Ocala, Fla., Mar. 10, 1892, remits the interest due on the Baughman note up to January 15, 1892, and on the McClellan notes up to February 9; 1892. No other letter was introduced showing a remittance of interest due on the notes for a later date. On January 3, 1894, one Norton Thayer, writing to appellant from Kansas City, stated that the interest seemed to have been paid on McClellan notes recently and thought it quite likely some adjustment could be made and sufficient payment
Respondent testified that he collected the interest on the Baughman note and McClellan notes remitted in the letter of March 10, 1892; this was interest due in January and February, and that after that date he was absent in Florida for two and a half or three years, with the exception of about one month when he attended the World’s Fair at Chicago. He, however, says he collected no more interest on the notes after March 10, 1892. There were interest coupons attached to the McClellan notes, which coupons were sent to respondent by appellant for collection, and he states that he never had the notes in his possession during the time that he collected interest, but that what interest he collected on the Baughman note he gave a receipt for. Respondent also states that he collected interest for a great many other persons, as well as for appellant, and that he collected all the interest on the notes in suit up to the time of default in the payment of principal. In the original petition filed by appellant in this cause it was alleged that the interest due on the McClellan notes was paid up to and including the 9th day of February, 1892; the amended petition changed this date to August. In the original petition it was alleged that the interest on the Baughman note was paid up to and including January 15, 1892, but in the amended petition this date was changed to July.
The evidence shows that all the notes in question remained in the hands of appellant or someone else in New York until the McClellan notes were pledged for
On the question of Moore’s agency for Nevius in looking after his investments in Kansas City, the evidence shows that a Mr. Thayer, in September, 1889, when he sent a batch of notes to Nevius, among which was the Baughman note, advised Nevius to have Moore collect the interest on them, as he knew all about them. Moore wrote frequent letters to Nevius advising him of the probability of collecting the notes, and especially in October, 1891, he wrote saying that he saw no immediate prospects of collecting the McClellan notes, and further advising him that there was no sale for property. Nevius testified that as to the collection of interest on these notes he relied entirely on Moore. In February, 1893, Moore wrote to Nevius telling him in relation to the Baughman and McClellan notes that they were about to make a sale of some of the property and if they did that in all probability they would take the notes up and hold them; this last letter was written from Ocala, Florida. Also in the fall of 1893 Moore wrote Nevius from Florida telling him that if he was in Kansas City he would attend to looking after his interests there gratis, also telling Nevius that he was then utterly unable to help him out and referred him to Mr. Norton Thayer, who would look after his interests there. Nevius had Thayer and the father of respondent pay
Both Nevius and Moore testified that neither of them retained copies of letters written to the other. Much of the correspondence that passed between them, it is clear from the evidence, was not introduced, and according to the testimony of the parties could not be because the letters were lost or misplaced.
On the question of the asserted promise to pay the notes in question by Moore after their maturity, the following evidence was adduced:
In a letter to Nevius from Moore, dated February 11, 1893, he stated that in regard to the Baughman and McClellan notes they were about to make a sale of some property and that if so in all probability “we will take the notes up or hold them ourselves.” In a letter written by Moore to Nevius dated Ocala, Florida, November 17, 1893, Moore said: “I am sorry to say that as you are to hear that I am utterly unable to help you at present,” and then refers Nevius to Norton Thayer to look after the taxes for him. In a letter from Kansas City, September 17, 1895, Moore said to Nevius: “Let me assure you I will do what I can to see that you do not lose anything on the notes we sold you. There is a time for everything but I do not think this is the right time to push Mrs. M,cClellan. Think you can make more by waiting a little longer. ’ ’ The letter most relied upon by appellant as a promise to pay these notes after their maturity, is the one dated Kansas City, February 10, 1898, written by re
As to the Baughman note Moore wrote to Nevius as early as September, 1895, advising him of the residence of Baughman in Pennsylvania, and advising steps to collect, same against Baughman, because he was then solvent. Again in February, 1897, Moore wrote to Nevius in relation to this note, stating to him that if he had not begun proceedings against Baughman he should do so. A few days later Moore wrote ag’ain to Nevius telling him that an action against Baughman on a companion note for $750 had been successful, that he had paid the judgment, and again urged him to proceed against Baughman by placing the note in the hands of the firm of attorneys he gave, for collection. On January 9, 1899, Moore wrote to Nevius to send the Baughman note to Kansas City so that the deed of trust could be foreclosed, suggesting that he buy the property in and then bring suit against Baughman on the note. Again in December, 1899, Moore wrote to Nevius in which he strongly advised that he send the Baughman note out and have the deed of trust foreclosed; further advised him to bid the property in and gave reasons why he thought it would increase in value. Later in December, 1899, he again wrote Nevius concerning the Baughman note and advised a foreclosure of the deed of trust and also informed Nevius that he thought Baughman was good. Evidently the Baughman note was sent to. the firm of lawyers suggested by Moore; on June 6, 1901,. they returned the note to Mr. Moore. The evidence shows that the Statutes of Limitations in the State of Pennsylvania against a promissory note is sis years and during all the time Nevius owned the Baughman
Nevius testified that in January, 1899, he borrowed from Moore four hundred dollars, for which he pledged two of the McClellan notes; that in December, 1899, he borrowed two hundred dollars more and pledged the third McClellan note; and that in January, 1900, he borrowed two hundred dollars more from Moore and pledged the fourth McClellan note. Each of these notes was pledged by the following writing: “These notes are to be held by you as collateral security for a loan of $-• until such time as the property can be foreclosed, when I will give you a mortgage on said property should I buy it in.” The letters containing the above pledge were addressed to Moore. In December, 1898, Moore, in answer to a letter from Nevius, which is not in evidence, offered to buy the McClellan notes from Nevius or to get some one to furnish money and stated the amount to be eight hundred dollars; also stated that if he effected a sale of the property within a year or two he would give Nevius all over eight hundred dollars less expenses, taxes, etc. Nevius declined this offer and then made application to Moore to borrow the money above referred to. In making’ the loans made by Moore to Nevius notes were executed by Nevius to Moore for the aggregate sum of eight hundred dollars, which were secured by pledges of the McClellan notes and deeds of trust. Moore represented to Nevius that he did not have the money, but he would get it from
As to the foreclosure of the deeds of trust given to secure the Baughman as well as the McClellan notes, the testimony shows that the Baughman deed of trust was foreclosed at the request of Nevius upon the advice of Moore that it ought to be foreclosed. The McClellan deeds of trust were foreclosed because, as Moore claims, the notes given by Nevius to him aggregating the sum of eight hundred dollars had become overdue and that Nevius did not pay or offer to pay them or any part of them. The McClellan notes and deeds of trust were then in his hands as a pledge to secure the payment of the Nevius notes. Under the contract of pledge Moore had the right to foreclose the deeds of trust when the Nevius notes became due. Moore claims that he instructed the trustee, Yeager, to deed the Baughman property to Nevius; he also claims that he did not know this property was deeded to him until his .attention was called to it by Nevius’s attorney. Notice of these sales was given in the manner provided by the deeds of trust; in fact, no point is made nor is any fraud charged in the manner of making the sales, except that Moore did not notify Nevius of the fact that the sales were to be made, nor the time, nor did. he afterwards notify Nevius that the sales had been made; in fact, there seems to have been no correspondence passing between Moore and Nevius after the year 1900. Expenses of these sales, amounting to about eighty-five dollars, were paid by Moore and he never asked Nevius to pay any part of them. At the sales each lot under sep
This is a sufficient indication of the nature and character of the testimony upon which the issues in this case were submitted to the trial court. At the close of the testimony the cause was submitted to the court and the finding and judgment rendered upon all the counts in the petition were in favor of the defendant. A timely motion for new trial was filed and by the court overruled, and from the judgment rendered in this cause plaintiff in due time and proper form prosecuted his appeal to this court and the record is now before us for consideration.
OPINION.
The record in this cause discloses that at the close of the evidence .the plaintiff requested the court to declare the law upon the issues presented by the pleadings, as follows:
First. That the plaintiff was entitled to a judgment on each ground of the petition.
Second. That the ten-year Statute of Limitations had not run against the notes.
Third. That the letter of February 10, 1898, had the effect of avoiding the Statute of Limitations.
Fourth. That said letter dispensed with the proof on the part of the plaintiff of any demand for the payment of the notes in suit, as well as any notice and protest by reason of such non-payment.
Fifth. That it was not necessary for plaintiff to exhaust his remedy at law against McClellan and Baughman before proceeding against defendant.
Sixth. That if defendant procured from his wife the money loaned to plaintiff, the pledge-of the Me
Seventh. That the defendant was not the pledgee of the McClellan notes, nor the legal holder thereof.
All of the declarations of law requested by the plaintiff, as indicated, were refused by the court. The trial court manifestly tried this case upon the first two counts, or, in other words, the equity counts as contained in the petition. Obviously the trial was had upon the equity counts for the reason that if appellant was not entitled to recover upon either of those counts clearly he could not recover on any of the others. It is wholly immaterial so far as the equity counts of the petition are concerned whether the instructions were correct declarations of law, or whether they were properly or improperly refused. However, in the consideration of this cause we shall undertake to treat of and announce the rules of law applicable to all of the counts embraced in the petition.
In equity cases this court will exercise its right to review the testimony as disclosed by the record and draw its own conclusions as to the rights between the parties. However, in reviewing the testimony disclosed by the record we are not unmindful of the well-recognized rule that where the testimony is conflicting and disputed questions of fact are to be settled, by reason of the superior advantage possessed by the chancellor to observe, the conduct of the witnesses and to weigh their testimony, the appellate court will defer in a large measure to the finding of the trial court upon such disputed questions. [Harris Banking Co. v. Miller, 190 Mo. 640.]
I.
While the record before us does not in terms so disclose, it is obvious that the trial court entertained the views that the causes of action stated in all the
rr.
It is apparent from the evidence disclosed by the record that there can be but one reasonable inference drawn respecting the sale and transfer of the notes in question to the plaintiff, Nevius, and that is, that the defendant indorsed said notes before maturity by writing his name on the backs thereof. Under these circumstances, in order to hold Moore liable as indorser, it was necessary for Nevius to make presentment and demand of payment of the notes at their maturity and to notify Moore of the failure of the makers to pay. The evidence discloses clearly that no proper presentment and demand of payment was made nor was notice given to respondent. In fact, at the maturity of all the notes they were in the hands of Nevius in New York — they could not have been properly presented and demand of payment made without the presence of the notes. The fact that Moore may have notified McClellan and Baughman that their notes were due falls far short of answering the requirements of the law relative to presentment, demand and notice.
III.
It is next earnestly insisted by learned counsel for appellant that the letter written by Moore, the defendant, to Nevius, the plaintiff, on February 10, 1898, in connection with other letters written prior thereto, constitutes a waiver of presentment, demand and notice, and by such waiver converted his con
The only consideration we think necessary to be given to the language of this letter is whether or not it was sufficient to constitute a waiver of presentment, demand and notice, and thus continue or reinstate Moore’s liability as indorser. This letter was not written by the maker of the notes and as there was no consideration therefor shown as applicable to the indorser, it certainly could not have the effect of creating an independent liability to pay the debt represented by the notes. “If the proper steps are not taken to fix the indorser and thus convert his conditional liability into an absolute engagement, he is discharged, unless, with a full knowledge of all the facts of his release, he promised to pay the debt, or does acts from which said promise can be clearly and unmistakably inferred.” [Faulkner v. Faulkner, 73 Mo. 327; Long v. Dismer, 71 Mo. 452.]
In the case of Thornton v. Wynn, 25 U. S. l. c. 188, the court used this language: “These declarations amount to an unequivocal admission of the original liability of the defendant to pay the note and nothing more. It does not necessarily admit the right of the holder to resort to him on the note and that he has received no damage from the want- of notice, unless the jury, to whom the conclusion of the facts from the evidence ought to have been submitted, were satisfied
In Dyas v. Hanson, 14 Mo. App. 363, it was expressly held by that court, that “the rule is that a party relying upon a waiver of liability must prove that it was made with full knowledge of the facts by the party who thus releases his rights.” To the same effect is Thresher Co. v. Pierce, 74 Mo. App. 676. It is there said: “To constitute waiver there must be actual knowledge of all the facts and an acquiescence in the failure of the other party to have lived up to the letter of his contract.”
Our attention is directed by learned counsel for appellant to a line of cases treating of the sufficiency of an acknowledgment of a debt in order to take it out of the Statute of Limitations. An examination of those cases will demonstrate that they have no application to' an indorser, but the conclusions reached and the rule announced in these cases manifestly had in view the person originally bound as a maker of the note, and in such cases it is obvious that it is not necessary that the party acknowledge a willingness to
There' is an entire absence of any evidence indicated by the record that Moore, at the time he wrote the letter herein referred to, knew that the notes had not been presented to the makers for payment. Obviously the defendant, Moore, knew that he had not received notice of the presentment to and demand of. the makers for payment of the notes and their refusal to make payment, but that is not sufficient, in the absence of testimony showing that he had knowledge of all the facts, to give the letters as indicated herein the force and effect of a waiver of presentment, demand and notice.
But aside from what has been said heretofore, that the facts developed did not constitute a waiver of presentment, demand and notice, it is very questionable as to whether or not under the allegations in the petition of this case any testimony tending to
It was ruled in Pier v. Heinrichoffen, 52 Mo. 333, that an allegation in the petition, as in the case at bar, of demand of payment, at maturity, and due notice thereof to the indorser, could give no intimation to the defendant of the nature of the evidence, by which the plaintiff proposed to sustain it. The indorser could only know that he received no notice; but of what steps if any were taken to give it, or of the causes of the failure to give it, or of the facts relied on to excuse the want of it, he of course is presumed to have no knowledge. “These are matters within the knowledge peculiarly of the plaintiff, which he should allege in his pleading and prove.”
In First National Bank of Burlington v. Hatch, 78 Mo. l. c. 24, the case last cited was unqualifiedly approved. It was there said that “the instruction of plaintiff relating to a waiver of presentment and notice of dishonor, was properly refused. When the plaintiff, in his petition, alleges presentment and notice of dishonor, he is not permitted, under our Practice Act, to prove that the defendant waived such conditions, in the absence of proper averments of a waiver.”
It is alleged in the respective counts of the petition that “the defendant in the year 1898 admitted in writing his liability to plaintiff for the amount of said note with interest .and promised to pay the same, but has failed so to do, and same is now due and payable.” This allegation, in our opinion, is not suf
We repeat, that tbe allegation concerning tbe admission of liability of tbe indorser to tbe plaintiff is not such a concise statement of tbe facts wbicb would constitute a waiver as would give a sufficient intimation to tbe defendant of tbe nature of tbe evidence by which tbe plaintiff proposed to show a waiver of due presentment, demand and protest. In other words, if plaintiff was relying upon a waiver of presentment, demand and notice of non-payment, then be should not bave alleged that due presentment, demand and notice was made, but should bave expressly alleged
IV.
It is next earnestly insisted by appellant that the pledge by him of the McClellan notes to respondent to secure the payment of $800 borrowed by appellant was fraudulent and void in this, that Moore misrepresented the facts to the appellant in claiming that the money was to be furnished by one Reid or some other person, when, as a matter of fact, he furnished the money himself. It is claimed that in 1901 Moore converted and appropriated the McClellan notes to his own use by having the deeds of trust securing the same foreclosed and buying the property in his own name. It is also claimed that Moore furnished the money himself for this loan and got possession of the McClellan notes for the 'purpose of destroying his liability as indorser. As applicable to these claims and. contentions on the part of the appellant it must not be overlooked that the appellant, Nevius, knew that he was executing the notes to secure the $800 to Moore, and equally had full knowledge that the written pledge contained in his letter was also made to Moore. This contract of pledge gave express authority to sell under the deeds of trust. So far as the sales under the deeds of tra^ were concerned the record discloses no attempt to charge or prove any fraud, except in so far as it is claimed that the failure of Moore to notify Nevius of the fact and the time of sale, and that the sales had taken place, were badges of fraud. No complaint is made of the want of proper
The law is well settled that the obligation and duties of a pledgee and pledgor are mutual and re
The appellant, Nevius, in this cause has never offered to pay his note for $800 made to Moore, nor does he make such offer now, either in his pleading or otherwise, exceiff by requesting that an accounting be taken between himself and Moore; that his claim against Moore be set off against his notes made to Moore and that he have judgment for the balance.
Under the facts as disclosed by the record in this cause we have reached the conclusion that at the time of the institution of this suit Moore was not indebted to Nevius; hence it logically follows that the allegations in the petition failed to amount to a tender of offer to redeem. It may be that appellant, Nevius, is entitled to have the McClellan lots conveyed to him by Moore upon the payment by him of the debt of $800, together with interest, but the difficulty of entering a decree of that character is that the appellant, Nevius, has not performed nor offered to perform what the law requires of him, that is, the payment of or a tender of payment of the notes for $800 executed to the respondent Moore. The fact that Moore did not notify Nevius of the time of the sales under the deeds of trust, nor of the fact that the sales had taken place, in our opinion did not prejudice his rights, nor take from him the continuing right to redeem his pledges.
Y.
Upon the second count of the petition, which is predicated upon the Baughman note and deed of trust, it is sufficient to say that the record discloses that
We have given expression to our views upon the legal propositions as disclosed hy the record, and have carefully reviewed all the facts developed upon the trial. In our opinion the judgment of the trial court should be affirmed, and it is so ordered.