93 Mo. App. 655 | Mo. Ct. App. | 1902
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The plaintiff as administrator of the estate of W. W. Tucker, deceased, sues tbe defendant as executor of tbe estate of R. L. Todd, deceased. Tbe history of tbe case in tbe main is substantially as follows:
In June 1889, Miss Bettie P. Todd, a daughter of R. L. Todd, deceased, bought a thirty-acre farm of one C. S. Pierce in tbe state of California, at tbe price of $7,597.20,
“Pay to the order of R. L. Todd without recourse. C. S. Pierce.”
On the note first due, the one in controversy, is the following writing: “Credit February 17, 1890, by seventy-four and 50-100 dollars (74.50), bal. due nine hundred and 93-100 dollars — which are to bear only six per cent interest from this date. R. L. Todd.” It seems that Tucker was not present at this time, but Todd charged his account in the bank with the amount of the three notes and remitted the proceeds of the notes to Pierce. No complaint is made of want of authority upon the part of Todd to apply the funds in the bank belonging to Tucker to the purchase of the said notes. Tucker died in 1892, and his son B. F. Tucker, the plaintiff here, and said Todd, were appointed as administrators of his estate.
In August, 1892, after the death of Tucker, and after the note in suit became due, Miss Todd conveyed said mortgaged property to her father, R. L. Todd, for the expressed
TVe gather from the plaintiff’s argument that he relies for recovery upon two grounds, viz.: first, that Todd was an indorser ; second, if not an indorser, he was a guarantor.
Pierce, the payee of the note, transferred it "to Todd who thereby became the holder. It is contended that the writing on the back of the note: “Credit February 17, 1900, by seventy-four and 50-100 dollars ($71.50), balance due nine hundred and 93-100 dollars' — which are to bear only six per cent interest from this date,” and signed by R. L. Todd, amounts to an indorsement by Todd. It seems to us, however, that it is plainly otherwise, and that the signature of Todd is to be construed as a mere attestation of the credit given and of the reduced rate of interest the note shall bear from that date. But there is evidence that Todd said at one time that he had indorsed the note to Tucker. On this point, T. S. Carter testified that after the death of Tucker he had heard Todd say he had indorsed and delivered the three notes to Tucker, and that he felt he was liable for them. But admitting that the signature of Todd, as aforesaid, was intended as, and, in fact, was an indorsement, we do not see how that would help the plaintiff, as it does not appear'that demand and notice of failure to pay was ever at any time made upon- Todd; in the absence of which the plaintiff could not recover of Todd or his executor.
When the guaranty is contemporaneous with the execution of the instrument, it is not necessary that there should be any consideration other than that for which the note is evidence. But where, as in this case, the alleged guaranty was made long after the execution and delivery of the note, although before due, there must be some new consideration. Like all valid contracts, there must be a consideration to support it; and there can he no presumption of a consideration — it must be proved. Howard v. Jones, 13 Mo. App. 595; Pfeiffer v. Kingsland, 25 Mo. 66; Osborne & Co. v. Lawson, 26 Mo. App. 549; Daniels on Negot. Inst., pp. 682-83, sec. 1160. There is nothing in this case tending to show a consideration for a guaranty. The evidence is to the. effect that Todd, at the time he delivered the note to Tucker, although he was the indorsee, had no interest in it whatever. It was transferred to him as a matter of convenience to be delivered to Tucker, the purchaser. The contention of the plaintiff for this reason alone would fail. We are forced to the conclusion that Todd was neither an indorser nor a guarantor, as the testimony wholly fails to show either.
On the trial, plaintiff B. E. Tucker was introduced as a witness to prove certain statements alleged to have been made by Todd in April, 1892, while an inventory was being made of the estate of the deceased Tucker. Upon objections on the part of the defendant that he was not a competent witness, he was not permitted to testify. Plaintiff alleges this to have
Miss Bettie P. Todd was also introduced as a witness by plaintiff to prove the signature of C. S. Pierce, the indorser and payee of the note in suit; whereupon the defendant, over the objections of the plaintiff, proceeded to prove by her other facts in the case. This is claimed to have been error on the part of the court. It is true that Miss Todd was an incompetent witness by reason of the fact that she was an heir at law of Todd the deceased but the plaintiff by introducing her as his own witness waived her incompetency. Borgess v. Vette, 142 Mo. 560; Hoehn v. Struttman, 71 Mo. App. 399.
.The defendant has argued that he could not be held to the payment of the note on the ground that his testator had assumed its payment in consideration for the conveyance to him by Miss Todd of the California land mortgaged to secure the same. The plaintiff has not urged that point in his argument for the reason, we suppose, that it was untenable as there was no evidence upon which to base it.
The plaintiff offered to prove by J. A. Johnson certain
There are other questions raised by the parties here, but as those already passed on have precluded the right of the plaintiff to recover upon any theory whatever, they will not be considered.
Eor the reasons given, the cause is affirmed.