First Nat. Bank v. Payne

• Decision Date: 02 July 1892
• Citation: 20 S.W. 41,111 Mo. 291
• Court: Missouri Supreme Court
• Parties: FIRST NAT. BANK OF ST. CHARLES v. PAYNE <I>et al.</I>

20 S.W. 41

111 Mo. 291

FIRST NAT. BANK OF ST. CHARLES v. PAYNE et al.

Supreme Court of Missouri, Division No. 1.

July 2, 1892.

WITNESS — COMPETENCY — TRANSACTIONS WITH DECEDENT — NOTE — INDORSEMENT BEFORE DELIVERY.

1. Where a note, payable to the maker, and indorsed by several persons, is delivered to the cashier of a bank as collateral, and the bank, in an action against the indorsers, introduces its bookkeeper for the purpose of showing that the note was not indorsed by the maker until after its delivery to the bank, and until after its indorsement by defendants, and that the bank, therefore, was entitled to recover of defendants as makers, defendants are entitled, notwithstanding the death of the maker and the cashier, to testify in rebuttal that the note was not so indorsed.

2. The doctrine that when a person not a party to a note puts his name upon it before delivery he thereby makes himself an original promisor does not apply to a note payable to the maker, and indorsed before indorsement or negotiation by the maker.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action by the First National Bank of St. Charles against Fannie F. Payne and Rochester Ford. Judgment for defendants. Plaintiff appeals. Affirmed.

T. F. McDearmon, for appellant. Silas B. Jones, for respondents.

BRACE, J.

This action is based upon the indorsements of defendants upon the following promissory note filed with the petition: "$6,000. St. Louis, Mo., March 28, 1889. Sixty days after date I promise to pay to Robert H. Payne or order six thousand dollars, value received, with interest at the rate of ______ per centum per annum. Negotiable and payable without defalcation or discount. ROBERT H. PAYNE," — upon which were the following indorsements: "May 30, 1889. Protest is hereby waived by the undersigned indorsers. ROBERT H. PAYNE. FANNIE F. PAYNE. ROCHESTER FORD." The petition was in two counts. The first charged the defendants as makers, the second as indorsers, waiving protest. Issue was joined by answer, and the case tried before the court without a jury. The signatures of the parties on the note were admitted. The evidence tended to prove that the waiver of protest of May 30, 1889, indorsed on the back of the note, was written on that day by Robert H. Payne, and no authority from defendants to him so to do being shown, the only possible ground of recovery in the case was to charge the defendants as makers. The court, at the request of the plaintiff, declared the law of the case, by way of instruction, to be that, "if the evidence shows that the defendants indorsed their names on the back of the note in suit while in the hands of the payee, and that the payee negotiated and delivered the same to the plaintiff without indorsing his name on the back thereof, the plaintiff is entitled to recover of the defendants as makers," found the issue for the defendants, and from the judgment in their favor the plaintiff appeals.

On the trial the plaintiff introduced the oral evidence of its clerk or bookkeeper, tending to prove that the note in question, with other securities, was on the day of its date delivered to plaintiff's cashier by Robert H. Payne, the maker, as collateral security for two other notes of the same date, executed by him, aggregating the same amount, payable to his own order 60 days after date, and by him indorsed in blank, delivered to and discounted by the bank for him on that day; and that at that time the name of Robert H. Payne was not indorsed on the note in suit, but was afterwards written on the back thereof on the 30th of May, 1889. To meet this testimony, the defendants were introduced as witnesses in their own behalf, and were permitted to testify, over the objection of the plaintiff, and after it had first been shown that the cashier and Robert H. Payne were dead at the time of the trial; the said Fannie F. Payne, that at the time she indorsed said note the name of the said Robert H. Payne was already indorsed thereon, and the said Ford, that at the time he indorsed said note the names of the said Robert H. and the said Fannie F. were already indorsed thereon. The admission of this evidence the plaintiff complains of as error, for which the judgment should be reversed; and for support of its contention relies upon a line of decisions of this court, maintaining the doctrine that the death of the contracting agent of a surviving party to a contract excludes the evidence of the other contracting party. Stanton v. Ryan, 41 Mo. 510; Butts v. Phelps, 79 Mo. 302; Williams v. Edwards, 94 Mo. 447, 7 S. W. Rep. 429; to which may be added Leach v. McFadden, 19 S. W. Rep. 947, (decided at this term.) We do not understand the rule in these cases, however, to extend further than to transactions had by a party to the action with the deceased agent of the other party acting in behalf of his antagonist. The defendants in this case did not undertake, nor were they permitted, to testify in regard to any contract or transaction they had either with Robert H. Payne, the maker of the note, or with the cashier of the bank, or any other of its officers, dead or alive. They were permitted to testify merely to a physical fact, the existence of which was independent of any and all contracts between the parties, — a fact not peculiarly within the knowledge of the defendants and any agent of the bank, arising from a transaction between them and such agent, but of which they obtained cognizance by their sense of sight, and which was open to the cognizance of any other witness to whom an opportunity was afforded, at the time, of inspecting the note in suit, and concerning which one of the plaintiff's officers, who had such opportunity, testified, and but for whose evidence as to such fact the plaintiff would have made out no case against the defendants. How can the plaintiff then claim that the defendants should be excluded from testifying in rebuttal of a case made out alone by the evidence of its living agent, on the ground that it had another agent dead, by whom it could have made out the same case and nothing more? Upon the face of the indorsements upon this note the defendants were indorsers, and chargeable only as such. As we have seen, the plaintiff failed to make out a case against them as indorsers. It then sought to charge them as makers. In order to do so it had to resort to the extrinsic parol evidence of its clerk, whose evidence alone made for it all the case it had. To exclude the...