80 Mo. App. 198 | Mo. Ct. App. | 1899
This action is based on a claim which J. B. Roe had against defendant by reason of having paid off a note of defendant’s on which he, Roe, was surety. The judgment was for plaintiff. Defendant did not introduce any evidence and the only point in the case is whether there was evidence to support the finding.
Defendant, J. B. Roe, and others signed the note which was also payable to defendant. Defendant indorsed it to one Ham Lusk and J. B. Roe as surety paid it to Lusk’s attorney who had it for collection; Lusk assigned it to J. B. Roe without recourse. J. B. Roe afterwards became sick and after lingering for a considerable time, died. Plaintiff, who is his
Defendant claims that there was no sufficient evidence of this delivery. We think there was. The brother of deceased and of this plaintiff, who had the note in a book in his charge, stated that he put the note in the book when it was indorsed by deceased. That after plaintiff’s arrival deceased called for the book and he saw him hand a paper to plaintiff and though he was not close enough to identify the paper as the note in question, yet it was thereafter not in the book where he put it. In our opinion the testimony of the attorney who collected the note, in connection with that of the brother who had it in charge afterwards, makes a prima facie case. In the absence of evidence in behalf of defendant, the plaintiff is entitled not only to the effect of the direct testimony in his behalf, but also to every reasonable inference which may be drawn from the entire evidence. We see no reason to justify us in disturbing the judgment and it is accordingly affirmed.