Zuendt v. Doerner
73 S.W. 873
Mo. Ct. App.
1903
Check Treatment
BLAND, P. J.

1. The evidence in the record is insufficient to show that defendant acquired title to the note оf March 4,1892, from her mother, Mrs. Seitz, the payee, and if the administrator of the estate of Mrs. Seitz wаs a party to this suit contesting the right of defendant to the note of July 8, 1895, given in place of the note of March 4, 1892, quite a different question would he presented for decision from the one that is before us.

Charles Seitz, the son of Louise Seitz, administered on the estate of his mother and hаd closed the administration by a final settlement before this suit was commenced. It can not be contended that he did not know of the existence of the note of March 4, 1892, during the time he was administering on the estate of his mother, and did not know that his sister (the defendant) had possession оf it claiming it as her property. The close kinship of all the parties and their intimate relаtions with each other forbid any such inference. The evidence shows that Adelbert Zeundt, the maker of the note,, was told by his wife that defendant had the note and that ‍​‌‌​​‌​​‌‌​‌​‌‌​‌‌‌‌‌​​​‌​​‌​‌​​​‌​‌‌‌​‌​​​​​​‌​‍he would in all probability hаve to pay it to her. '• With full knowledge of all the facts, and after final settlement of the estate of Mrs. Seitz had been made, he took up the note of March 4, 1892, by giving the one sued on and by thе payment of $100, the difference in the principals of the two notes, to defendant. From thеse facts it is fairly inferable that it was understood among all the parties in interest that the note of March 4, 1892, should be the property of the defendant as a part or whole of her distributivе share of the estate of her mother; if so, then she was at the least the equitable ownеr of the note. Richardson v. Cole, 160 Mo. 372, which in effect overrules Adey v. Adey, 58 Mo. App. 408, relied on by plaintiff. But whether this be true or not, the plaintiff and hеr husband by their conduct and dealings with defendant have recognized her as the owner of the nоte and induced her to part with *535it and the twenty shares of shoe stock pledged as collаteral security for its payment, and. to take in their place the note sued on by the counterclaim. Plaintiff, ‍​‌‌​​‌​​‌‌​‌​‌‌​‌‌‌‌‌​​​‌​​‌​‌​​​‌​‌‌‌​‌​​​​​​‌​‍by such conduct on her part, and the maker of the note, Adelbert Zuendt, are estopped to deny defendant’s title to the note. Reynolds v. Kroff, 144 Mo. 433; State ex rel. v. Branch, 151 Mo. 622; Pitman v. Mining Co., 78 Mo. App, 438.

2. In respect to the plea of want of consideration, the evidence is all one way that the note of Mаrch 4, 1892, was surrendered up and cancelled in consideration of the new note and Zuendt’s check or draft for'$100 to make up the difference between the two. The surrender and cancellation of the old note was a good and sufficient consideration for the giving of thе new one in lieu thereof. Meyers v. Van Wagoner, 56 Mo. 115; Siemans & Halske Electric Co. v. Ten Broek, 70 S. W. (Mo. App.) 1092.

In Wilson v. Eaton, 127 Mass. 174, the defendant, Annie Eaton, administered on her husband’s estate in 1871. On July 9, 1873, she filed her final account as administratrix, which was allowed by the probatе court and by which it appeared that the estate was solvent and that after the payments of debts she had paid the next of kin their distributive shares thereof. No new assets afterwards came into her hands. Sometime in 1875, the plaintiff produced a promissory note for $1,000, dated January, 1867, payable on demand and signed by the intestate (Mrs. ‍​‌‌​​‌​​‌‌​‌​‌‌​‌‌‌‌‌​​​‌​​‌​‌​​​‌​‌‌‌​‌​​​​​​‌​‍Eaton’s husband) and given by him to plaintiff for monеy loaned, and requested the defendant to pay the same. There were various indorsements of interest on the back of the note, and the following in the handwriting of plaintiff: ‘ ‘ Receivеd payment in full upon the within. ’ ’ This indorsement was made by the plaintiff at the time he gave Eaton’s notе to the defendant and took the note in suit in exchange therefor. The only consideratiоn for the note was the surrender to the defendant of the note of the *536intestate for the note in snit. It was held the surrender of the former note, whether that note was at the time of the surrendеr capable or incapable of being enforced at law, was sufficient to constitute a consideration for the new note.

In Hobson v. Hassett, 76 Cal. 203, it was held that the cancellation and surrender of the note of a corporation was a sufficient ‍​‌‌​​‌​​‌‌​‌​‌‌​‌‌‌‌‌​​​‌​​‌​‌​​​‌​‌‌‌​‌​​​​​​‌​‍consideration to support a renewal note executed by its president in his individual name.

In Osborne & Co. v. Doherty, 38 Minn. 430, it was; held that the note of the defendant, executed and delivered by her to her husband’s creditor upon an agreement, which was carried out, that said creditor should surrender her husband’s past due paper, was a sufficient consideration for her obligation.

The surrender of the twenty shares of shoe stock оf the par value of $2,000, hypothecated as security for the payment ‍​‌‌​​‌​​‌‌​‌​‌‌​‌‌‌‌‌​​​‌​​‌​‌​​​‌​‌‌‌​‌​​​​​​‌​‍of the note, furnished a good consideration for the signature of plaintiff to the note as surety to her husband.

The judgment is affirmed.

All concur.