Bates v. Forcht

• Decision Date: 07 June 1886
• Citation: 89 Mo. 121,1 S.W. 120
• Parties: BATES and others v. FORCHT and others.
• Court: Missouri Supreme Court

1 S.W. 120

89 Mo. 121

BATES and others v. FORCHT and others.

Supreme Court of Missouri.

June 7, 1886.

1. PROMISSORY NOTE — NOTE SIGNED BY PARTNER WITHOUT AUTHORITY — ARTICLES OF PARTNERSHIP — NOTICE TO HOLDER — EVIDENCE.

In a suit upon a promissory note brought against members of a copartnership, the firm name being signed as maker, articles of partnership showing an agreement between the partners not to sign or indorse negotiable paper without the consent of the other partners are not admissible in evidence, as they are a private agreement, of which the holder of the note cannot be charged with notice.

2. SAME — EVIDENCE.

Evidence tending to prove that a deceased partner never mentioned having signed a note is not admissible, as it has no tendency to prove that he did not sign the note.

3. WITNESS — COMPETENCY — PARTY IN INTEREST — SECTION 4010, CH. 72, REV. ST. MO.

The evidence of a stockholder, corporator, and cashier of a bank is not incompetent, on the ground that he is a party in interest, either at common law or by section 4010, c. 72, Rev. St.

4. SAME — TESTIMONY AS TO EXECUTION OF PROMISSORY NOTE — DEATH OF PERSON EXECUTING NOTE.

It is error to exclude the evidence of the president of a bank, the payee of a promissory note, and the only one present at the execution of the note except the person who executed it, on account of the death of the latter. Such evidence being competent at common law, section 4010, Rev. St. being an enabling and not a disabling act, does not render it incompetent.

5. PROMISSORY NOTE — BURDEN OF PROOF — RIGHT TO OPEN AND CLOSE ARGUMENT.

The burden of proving the execution of a promissory note rests on the party who sues on the note, and it is error not to permit him to open and close the argument.

Appeal from Macon circuit court.

Newton & Dysart and Mitchell & Williams, for appellants, James M. Bates and others. Sears & Guthrie and C. P. Hess, for respondents, William F. Forcht and others.

NORTON, J.

This action was brought to the May term, 1882, of the Macon circuit court, by petition in the usual form, on a note, of which the following is a copy:

                "$3,000.                                         MACON, MO., July 20, 1881
                

"Four months after date, for value received, we promise to pay to the order of Macon Savings Bank three thousand dollars, with 8 per cent. interest from maturity, the interest payable annually, and, if not so paid, to become principal, and bear the same rate of interest. Payable at the office of the Macon Savings Bank, November 20, 1881.

                      [Signed]                                 "T. G. SHARP & Co
                  "No. 7,681."
                Across the face was written
                "Protested for non-payment
                "February 25, 1882
                       [Signed]                        "ELI J. NEWTON, Notary Public."
                

On the back were the following indorsements: "J. B. MELONE, Pt. Interest paid to February 22, 1882, $60."

Defendants William F. Forcht and John Shepherd filed a joint answer, consisting (1) of a general denial; (2) of a plea of non est factum; (3) a denial that plaintiffs were holders for value before due; (4) that no member of the defendant firm had any authority to execute the note; that the firm nor any member of it, ever received any consideration for the same; (5) that the Macon Savings Bank fraudulently caused said note to be executed, and was in truth and fact the maker thereof, and plaintiffs well knew that said bank represented and treated T. G. Sharp & Co. as accommodation makers, and plaintiffs looked to said bank for payment; (6) that plaintiff, when said note became due, on November 20, 1881, without the knowledge or consent of Sharp & Co., for a valuable consideration, extended the time of payment of said note for four months, to-wit, until February 22, 1882; (7) that on the sixteenth of February, 1882, said Macon Savings Bank failed and is wholly insolvent. This answer was properly sworn to by defendant Forcht.

McGee, administrator of T. G. Sharp, answered separately; denied that the note was executed by Sharp; and alleged that, if said note was executed by him, it was executed solely for the accommodation of the bank, and that neither Sharp, nor the firm of which he was a member, ever received the proceeds thereof, or consideration therefor; that the total proceeds went to the Macon Savings Bank; and that plaintiffs took the note with full knowledge of these facts, and that the time for the payment of said note had been extended without the consent of Sharp or his firm. Plaintiffs' replication to these answers was a general denial.

On the trial judgment was rendered for the defendants, from which the plaintiffs have appealed.

On the trial plaintiffs made prima facie proof of the execution of the note by T. G. Sharp, one of the firm of T. G. Sharp & Co., and the note was then read in evidence; and Mr. Bates, one of the plaintiffs, then testified that his firm discounted the note sued on, and purchased the same before maturity for a valuable consideration; that the note was duly assigned by the Macon Savings Bank for value before due, by indorsement thereon to his banking-house of ...