20 S.W. 41 (Mo. 1892), The First National Bank of St Charles v. Payne

Citation:20 S.W. 41, 111 Mo. 291
Opinion Judge:Brace, J.
Party Name:The First National Bank of St Charles, Appellant, v. Payne et al
Attorney:T. F. McDearmon for appellant. Silas B. Jones for respondents.
Case Date:July 02, 1892
Court:Supreme Court of Missouri
 
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Page 41

20 S.W. 41 (Mo. 1892)

111 Mo. 291

The First National Bank of St Charles, Appellant,

v.

Payne et al

Supreme Court of Missouri, First Division

July 2, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

Affirmed.

T. F. McDearmon for appellant.

(1) Under the testimony in the case the defendants were makers of the note sued on, and were liable as such. When parties place their names on the back of a note to which they are strangers, they are regarded as makers in the absence of extrinsic proof of an agreement to the contrary between them and the payee, known to the indorsee. Bank v. Hammerslough, 72 Mo. 274; Semple v. Turner, 65 Mo. 696; Chaffe v. Railroad, 64 Mo. 196; Cahn v. Dutton, 60 Mo. 297; Stagg v. Linnenfelsor, 59 Mo. 336; Seymore v. Farrel, 51 Mo. 95; Mammon v. Hartman, 51 Mo. 168; Boyer v. Boogher, 11 Mo.App. 130; Bosbyshell v. Ehninger, 3 Mo.App. 574; Butler v. Gambs, 1 Mo.App. 466; Burton v. Hasford, 10 W.Va. 470; Houghton v. Ely, 26 Wis. 181; Chaddock v. Venness, 35 N. J. 517; Bank v. Willis, 8 Metc. (Mass.) 504. And the onus is on the defendants to show such agreement. Cahn v. Dutton, 60 Mo. 297; Boyer v. Boogher, 11 Mo.App. 130; Chaffee v. Railroad, 64 Mo. 193. And they must show that the indorsee, plaintiff in this case, had notice of such agreement in order to bind it. Chaffee v. Railroad, 64 Mo. 193. The court, therefore, erred in refusing instructions, numbered 1 and 2, asked by plaintiff, and rendering judgment for defendants. (2) The testimony of defendants, Rochester Ford and Fannie F. Payne, was clearly illegal. They were incompetent witnesses, and their testimony should have been excluded, for the reason that Robert H. Payne, a maker and payee of the note in controversy, and who negotiated it to the plaintiff, and John E. Stonebraker, the plaintiff's cashier with whom the negotiation was made by said Payne, were both dead. Williams v. Edwards, 94 Mo. 447; Butts v. Phelps, 79 Mo. 302; Weiland v. Weyland, 64 Mo. 168; Chapman v. Dougherty, 87 Mo. 617; Meier v. Thieman, 90 Mo. 433; Ring v. Jamison, 66 Mo. 424; Kellogg v. Malin, 62 Mo. 429; Stanton v. Ryan, 41 Mo. 510; Angell v. Hester, 64 Mo. 142; Robertson v. Reed, 38 Mo.App. 32; Ashbrook v. Letcher, 41 Mo.App. 369. (3) Plaintiff was entitled to recover, even though it appeared from the testimony that Robert H. Payne's name was indorsed upon the back of the note at the time the defendants put their names thereon. Robert H. Payne, being both payee and maker of the note, gave the note the character and legal effect of a note payable to bearer when he negotiated it by delivery to the plaintiff bank. Revised Statutes, 1889, sec. 735, p. 256. (4) Plaintiff contends that if defendants were indorsers, as they claim, they waived protest and notice in writing on the back of the note.

Silas B. Jones for respondents.

(1) When a negotiable promissory note is drawn by the maker payable to his own order and indorsed by him, and afterwards indorsed by a third person, such third person is upon the face of the paper an indorsee as well as indorser, and liable only as such; and he is not a joint maker of the note under the rule, that where a third person, neither payee nor indorsee of a negotiable promissory note, writes his name on the back of it, he is prima facie a joint maker of the note. Rickey v. Dameron, 48 Mo. 61; Kuntz v. Temple, 48 Mo. 71; Bigelow v. Colton, 13 Gray, 309; Lake v. Stetson, 13 Gray, 310; Stoddard v. Pennimann, 108 Mass. 366; Heidenheimer v. Blumenkron, 56 Tex. 308; Williams v. Bank, 67 Tex. 606; 2 Parsons' Bills & Notes, p. 122; Tiedeman on Commercial Paper, sec. 270; 1 Daniel on Negotiable Instruments, secs. 707, 707a; Story on Promissory Notes, sec. 476, note 2. (2) If the note is payable to the maker's own order, and a third person indorses it before it is indorsed by the maker, and the maker afterwards indorses the note above the name of the third person, then the latter is liable as indorser only, and not as maker. Clapp v. Rice, 13 Gray, 403; Stoddard v. Pennimann, 108 Mass. 366; Dubois v. Mason, 127 Mass. 37; Blatchford v. Milliken, 35 Ill. 434; Kayser v. Hall, 85 Ill. 511. (3) First. Where a promissory note, negotiable in form, is made by the maker payable to his own order, it cannot take effect as a note until indorsed by the maker. 1 Daniel on Negotiable Instruments, sec. 130; Tiedeman on Commercial Paper, sec. 20; Smalley v. Wight, 44 Me. 442; Little v. Rogers, 1 Met. 108. Second. And in such case as the note can never have any validity until the name of the payee appears upon it as an indorser, a third person writing his name in blank upon the note before it is indorsed by the maker is presumed...

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