96 Mo. App. 299 | Mo. Ct. App. | 1902
Respondent Morton Wollman sued Sigfried Bienenstok and David Loewen on two promissory notes, both for $1,250, dated November 17, 1896, signed on their faces by Sigfried Bienenstok and •on the backs by David Loewen, payable two years after date with interest at the rate of five per cent per annum. One of said notes was made payable to Morton Wollman ■or his order and the other to Henry Wollman or his •order, and the latter was indorsed by the payee, Henry Wollman, to respondent Morton Wollman.
The petition was in four counts, the first declaring ■on the note in which Morton Wollman was payee against Bienenstok and Loewen as joint makers; the second on the note of which Henry Wollman was the original payee against the defendant in the same capacity; that is, as joint maker, and averring that after the execution of said note, Henry Wollman indorsed and delivered the same for value to the respondent, whereby respondent became its owner. The third count declared on the
Tbe answer was likewise in four counts, each of which contained a general denial and a plea of want of consideration, like tbe following one taken from tbe answer to tbe first count of tbe petition:
“Further answering said first count or cause of action, tbe said defendant David Loewen states that subsequent to tbe execution by tbe defendant, Sigfried Bienenstok, of tbe promissory note sued on in tbe first count or cause of action, tbe said defendant, David Loewen, signed bis name on tbe back of said note; that neither at tbe time tbe said defendant, David Loewen, signed bis name on tbe back of said note, nor after-wards, was there any consideration paid by or moving from, tbe plaintiff to either tbe said defendant, David Loewén, or tbe said defendant, Sigfried Bienenstok, nor was there any consideration paid by, or moving from tbe defendant Sigfried Bienenstok, to tbe said defendant, David Loewen; and that by reason of said want of consideration tbe said defendant, David Loewen, did not become and is not liable for tbe payment of said note.”
Tbe answer to tbe second and fourth counts' of tbe petition also averred that tbe note given to Henry Wollman was indorsed by him to tbe respondent after its maturity, without value and with full knowledge on tbe
The evidence shows that Bienenstok was a brother-in-law of the two Wollmans, and also of Loewen, and that wishing to engage in business, he applied to the Wollmans for a loan of five thousand dollars, which they finally consented to make provided Loewen would stand good for one-half of it. ' With the understanding that he would, the Wollmans, who lived in Kansas City, sent four notes of $1,250 each to Bienenstok in St. Louis, on November 17,1896, two of which notes were payable to Henry Wollman and two to Morton Wollman, and it was arranged between them ■ and Bienenstok that Loewen should sign one of the notes made to each of said payees. In the letter the Wollmans wrote to Bienenstok, he was requested to have Loewen sign the two notes either as maker or as indorser with protest waived. Loewen signed them by writing his name on the back, but dqclined to waive notice of' protest and the notes were accepted by the Wollmans in that form. They were not paid at maturity and were protested; but respondent concedes no proof is contained in the record before us sufficient to show that notice was given to Loewen of their dishonor so as to bind him as an indorser.
The main defense relied on in the court below by Loewen, who is the only appellant, was that the notes in suit were signed by him after the transaction had been closed between the Wollmans and Bienenstok and tiie latter had received the full amount of the loan, so that there was no consideration for his (Loewen’s) signature.
At the close of the evidence, the court refused to compel respondent to elect on which counts he would ask a verdict, but instructed the jury to return a verdict for the respondent on the first and third counts of the petition, which was done. An amendment was after-wards made so that the verdict was on the second’ count
The defense of want of consideration broke down; for it was shown to have been understood between the Wollmans and Bienenstok at least, that Loewen was to become obligated on the notes and the former lent their money on that understanding and Loewen signed the notes before they were delivered. These facts present a different case from those cited by the appellant in which parties who signed promissory notes as indorsers after the makers had executed and delivered them to the payee, without a previous arrangement that they should do so, were exonerated from liability because there was no consideration to support their promises. McMahan v. Geiger, 73 Mo. 145; McFarlan v. Heim, 127 Mo. 327. Loewen’s indorsement was contemporaneous with the promise of Bienenstok, the principal, and was for the latter’s accommodation; and in such instances the money lent to the maker is a sufficient consideration for the promise of the indorser. Krocht v. Obst, 14 Bush. (Ky.) 34; Palmer v. Field, 76 Hun 229, 27 N. Y. Supp. 736; Austin v. Boyd, 24 Pick. 64.
But that the peremptory instructions were erroneous if Loewen signed as indorser instead of as joint maker, for want of proof of notice to him of the dishonor of the notes at their maturity, is conceded by the respondent, who seeks to uphold the judgment on the ground that Loewen either actually signed as maker -or ought to be held liable in that capacity whether he did or not, on account of the state of the pleadings; that is, because he was alleged to be maker in the first and second counts of the petition and did not deny the execution of the notes under oath.
The rule of law in this State is that if one not .the payee of a promissory note, writes his name across the back of it, he is prima facie liable as a joint maker; but this presumption is open to rebuttal by parol evidence, unless the instrument has passed into the hands of an innocent holder; and until that happens, the party so
Respondent insists, however, that because the execution of the notes was not denied by the appellant under oath, the jury were rightly directed to find against him on the first and second counts of the petition in which he was sought to be charged as a principal. A curious point of practice is raised by this contention, on account of the different capacities in which Loewen was sued. He was proceeded against in two-counts on each note; that is, on the same cause of action; and both counts were answered by a general denial; one contained such affirmative allegations charging the defendant as an indorser, that a simple denial of them made an issue under which evidence was properly admitted that established an absolute defense to the cause of action against him as maker, stated in the other ‘count; but the other count itself was so framed that if it stood alone, said evidence could not have been ad-, mitted under an unverified general denial. Was an instruction for a verdict in plaintiff’s favor on the latter-count proper after evidence, which showed he was not liable on it, had been rightly received because pertinent to the issues made by the general denial filed to the count in which he was charged as indorser? We hold it was not; for the plaintiff rendered it possible for the
In Stewart v. Goodrich, 9 Mo. App. (St. L.) 125, and Madison v. R’y Co., 60, Mo. App. (K. C.) 599, certain evidence was introduced without objection under general denials, which was afterwards asserted to have been inadmissible under that plea; but the ruling of the court was, that granting it was inadmissible if an objection had been made, as none was made, the trial court should have submitted it to the jury. Granting that the plaintiff may have objected to the evidence to prove Loewen was an indorser and the record not show the objection because plaintiff is the respondent, still there is no material difference, so far as the justice of the matter is concerned, between a plaintiff permit
In Laughlin v. Gerardi, 67 Mo. App. (St. L.) loc. cit. 380, the majority opinion held, in an action on two promissory notes to which two defenses were set up and no substantial evidence in support of one of the defenses was adduced, that while the peremptory instruction the trial court gave for a verdict in the plaintiff ’s favor, could have been justified if the other defense had been'unsupported, a reversal was required because the other defense was maintained by competent testimony.
In May v. Crawford, 150 Mo. loc. cit. 528, the Supreme Court passed on an instruction which ignored testimony introduced by the plaintiff tending to prove the first of two alleged breaches of a contract, he having offered no testimony to establish the second alleged breach, nor the defendant any to disprove the first one, and said instruction was held to have been improperly given. The opinion says:
“The instruction given by the court of its own motion, was further faulty, in that it did not cover the whole case. The contract prohibited the use of certain specific terms by defendants, in their advertisements, and also forbade their advertising goods as bought from plaintiffs which had not been so purchased, and the petition assigned both acts as breaches, but the instruction given by the court of its own motion submitted only the latter feature of the case to the jury. It was specially misleading to the jury and prejudicial to the plain.tiffs, because the plaintiffs’ entire testimony was in support of the former, and they had offered no testimony to sustain the latter, while the exact reverse was true as to defendants ’ evidence, and this instruction submitted only the latter feature of the case to the jury. ”
The cases we have cited authorize the déduction of
The judgment is reversed and the cause remanded.