Brown v. Bowen

• Decision Date: 06 December 1886
• Citation: 90 Mo. 184,2 S.W. 398
• Parties: BROWN v. BOWEN.
• Court: Missouri Supreme Court

2 S.W. 398

90 Mo. 184

BROWN v. BOWEN.

Supreme Court of Missouri.

December 6, 1886.

1. PROMISSORY NOTES — ACTION ON — PURCHASER WITH KNOWLEDGE OF COLLATERAL AGREEMENT — PAROL EVIDENCE.

In an action by purchaser of a promissory note to recover for the conversion of the note where it appears by a written receipt, signed by the defendant, that the payee, a married woman, gave the note to him for negotiation, the proceeds to be turned over to the payee, parol testimony is admissible to show a verbal agreement between defendant and the payee of the note to the effect that the money received from the sale of the note should be applied to the payment of debts due from the payee to defendant and to another person, whose claim defendant held for collection, and that plaintiff had notice of these facts when he bought the note.

2. HUSBAND AND WIFE — WIFE'S AGREEMENT TO APPLY PROCEEDS OF NOTE TO PAYMENT OF DEBTS — REV. ST. Mo. § 3296.

Under section 3296, Rev. St. Mo., a married woman is competent to make a contract for the payment of her debts from the proceeds of the sale of a note made payable to her.¹

3. ESTOPPEL — HOLDER OF NOTE — POWER OF MARRIED WOMAN TO CONTRACT — PERSON CLAIMING UNDER HER.

In an action to recover for the conversion of a note, where the plaintiff claims the note by purchase from a married woman, he cannot object to the defense made that the note was received from the married woman in question by the defendant to sell, and apply the proceeds to the extinguishment of a debt due from her to him, on the ground that, being a married woman, she is incapable of contracting, as plaintiff's case depends upon her ability to contract.

Appeal from circuit court, Knox county.

O. D. Jones and W. C. Hollister, for appellant, Brown. Wilson & Cottey, for respondent, Bowen.

SHERWOOD, J.

Plaintiff claims in this action to be the assignee of a note for $400, executed to Mrs. Malinda Sherman, and sues defendant for its conversion.

The circuit court refused the following instructions asked by plaintiff:

"First. The court instructs the jury that the evidence of the verbal agreement made between Mrs. Sherman and defendant, Bowen, as deposed by defendant and his witnesses, is withdrawn from the jury; the same being incompetent, and not pertinent to any material issue in the cause.

"Second. Defendant admits in his testimony that his authority to act as the agent of Mrs. Sherman was revoked before the plaintiff's purchase of the note in question; and from and after that time he was not authorized to negotiate it, and you should find for plaintiff in such sum as the note was reasonably worth at the time of bringing suit.

"Third. That the written receipt and contract given by defendant to Mrs. Sherman at the time of her delivery of the note in question to him, is the only evidence before you as to the terms and conditions on which the defendant took and held said note."

And the court, of its own motion, gave these instructions:

"If the jury believe from the evidence in the cause that Mrs. Sherman was in debt to defendant in the sum of $120, and to Speicberger Bros. in the sum of $268.22, and that said Mrs. Sherman instructed defendant to hold said note until collected or negotiated, and to pay off said claims with the proceeds thereof, and that defendant agreed thereto with said Mrs. Sherman and Speicberger Bros., and that plaintiff, Brown, had notice of said claims and agreement with Mrs. Sherman before he purchased said note, then the verdict should be for the defendant; provided the jury believe from the evidence that the claims of defendant and Speicberger Bros. exceed or was equal in value to the said note.

"If the jury believe, from the evidence in the cause, the defendant and Mrs. Sherman had an agreement that defendant should negotiate said note, and with the proceeds pay off $120 to himself and a note belonging to Speicberger Bros., and that said Speicberger Bros.' note was assigned to defendant, Bowen, by agreement with Mrs. Sherman, with such an understanding, and L. F. Cottey, attorney for defendant, notified plaintiff thereof before he purchased the note, then the verdict should be for the defendant, if the...