The State ex rel. Mechanics-American National Bank v. Sturgis

• Decision Date: 25 January 1919
• Citation: 208 S.W. 458,276 Mo. 559
• Parties: THE STATE ex rel. MECHANICS-AMERICAN NATIONAL BANK v. STURGIS et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

208 S.W. 458

276 Mo. 559

THE STATE ex rel. MECHANICS-AMERICAN NATIONAL BANK v. STURGIS et al., Judges of Springfield Court of Appeals

Supreme Court of Missouri

January 25, 1919

Writ quashed.

Leahy Saunders & Barth for relator.

(1) Even uncontradicted testimony of a witness as to alleged facts does not create a conclusive presumption that such facts are true; it is still a question of fact for the jury to determine whether or not such alleged facts are true. Gannon v. Laclede Gas Light Company, 145 Mo. 514 520. The court in this case confounds uncontradicted evidence with conceded facts, and, in any event, invades the constitutional province of the jury. Wack v. Railroad Co., 175 Mo.App. 127; Dorsey v. Railroad Co., 175 Mo.App. 160; Craig v. United Railways Company, 175 Mo.App. 626; Hill v. Dillon, 176 Mo.App. 200; Coffman v. Realty Company, 176 Mo.App. 699. (2) The court, in holding that the word "Bk of" in pencil on the note changed the place of payment and invalidated the note ignored both Secs. 10094 and 10095, R. S. 1909, and the case of American National Bank v. Bangs, 42 Mo. 450. (3) The net result of this opinion is to hold that the words "Bk of" in pencil on the note would not have invalidated it prior to the Negotiable Instruments Act, which expressly provides that such alterations as against the holder in due course shall be immaterial, but that under said act the note is vitiated. The court, in support of this conclusion, cites Sec. 10057, R. S. 1909. and argues that the addition of the words "Bk of" was a material and prejudicial change as to the maker of the note, who is generally and universally liable. The said section has no conceivable application to the case at bar. This holding ignores the fact that the note was dated Oran, Missouri, and in any event, was payable at Oran, Missouri, under the express provision of Sec. 10043, R. S. 1909, and if it should be conceded, for the sake of the argument, that the words "payable a" were cut off, and that the note originally read "payable at Oran, Mo.," still this point would be wholly immaterial, because, under the terms of the note, it would still be payable at Oran, Missouri, by virtue of its dating, "Oran, Mo., May 28, 1915."

Gallivan & Finch and Oliver & Oliver for respondents.

(1) The statements of fact by the Court of Appeals is final and conclusive upon this court. State ex rel. v Ellison, 256 Mo. 666; State ex rel. v. Ellison, 269 Mo. 156; State ex rel. v. Reynolds, 272 Mo. 596; State ex rel. v. Farrington, 272 Mo. 163. (2) The Supreme Court will not attempt to determine the correctness or incorrectness of the views of the Court of Appeals on certiorari, but simply and solely whether they conflict with a controlling decision of this court. State ex rel. v. Reynolds, 272 Mo. 596; State ex rel. v. Robertson, 197 S.W. 79; State ex rel. v. Ellison, 269 Mo. 156. (3) This court on certiorari will not deal "with the case proper on its merits or demerits." State ex rel. v. Ellison, 272 Mo. 581; State ex rel. v. Ellison, 268 Mo. 238; State ex rel. v. Reynolds, 272 Mo. 596; State ex rel. v. Ellison, 269 Mo. 156. (4) The opinion of the Springfield Court of Appeals in this case was a judicial construction of Sec. 10094 and 10095, R. S. 1909, and no interpretation has been put upon those sections by this court since their enactment. (5) The opinion of the Springfield Court of Appeals would not be disturbed by this court on certiorari even if it should conflict with the opinions of appellate courts of other states construing like sections. State ex rel. v. Robertson, 197 S.W. 79; State ex rel. v. Ellison, 269 Mo. 156; State ex rel. v. Reynolds, 272 Mo. 596. (6) As a matter of fact, the construction given Sections 10094 and 10095 by the Springfield Court of Appeals is in accord with the construction placed upon the same sections by other courts of last resort. 1st National Bank v. Barnum, 160 F. 245; Elias v. Whitney, 98 N.Y.S. 667; Berks Co. Trust Co. v. Lyte, 95 A. 719 (Penn.) ; Ford v. Brown, 114 Tenn. 467; Stanford v. Stanford, 100 A. (N. J. Eq.) 398; Dollar Trust Co. v. Crawford, 70 S. E. (W. Va.) 1089; McLeod v. Despain, 49 Ore. 536; Wood v. Arnold, 191 S.W. 760; Andrews v. Sibley, 107 N. E. (Mass.) 396; Bassick v. Aetna Explosive Co., 246 F. 1004; Tyler v. 1st Nat. Bank, 150 S.W. 665; Holbart v. Lauritson, 148 N.W. (S. D.) 19, 1915 A. L. R. A. 166. (7) The opinion of the Springfield Court of Appeals is in complete accord with the statute of the State, and the decisions of this court, rendered prior to the adoption of the Negotiable Instruments Laws, which were not modified by said statutes. Secs. 10022, 10094, 10095, R. S. 1909; Bank v. Fricke, 75 Mo. 179; Paramore v. Lindsey, 63 Mo. 66; Carson v. Lumber Co., 270 Mo. 248; Collison v. Norman, 191 S.W. 60.

FARIS, J. Bond, C. J., concurs in result.

OPINION

In Banc

Certiorari.

FARIS J. --

This is an original proceeding by certiorari, whereby relator seeks to quash the record of the Springfield Court of Appeals in the case of Mechanics-American National Bank, Appellant, against M. Helmbacher, Respondent, for that, as it is averred, the opinion filed therein by the Court of Appeals is in certain behalves in conflict with the last previous rulings of this court.

The facts in the above case (which for brevity we shall call the Helmbacher case), as these facts were found by the learned Court of Appeals, are thus set fourth in the opinion of that court:

"This is a suit on a promissory note for $ 1,500, dated May 28, 1915, payable on or before January 1, 1916, interest at eight per cent. This note is as follows:

"'$ 1,500. Oran, Co., May 28, 1915.

"'On or before Jan. 1st, 1916 after date, we promise to pay to the order of C. D. West, trustee, fifteen hundred 00/100 dollars, for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of eight per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest until paid. (Signed) Peter Dirnberger. M. Helmbacher.

"'Bk. of

"'t Oran, Mo.

"'Due Jan. 1st, 1916.'

"Indorsed on back: 'C. D. West, Trustee.'

"Upon trial, before the court and a jury, judgment below was for the defendant, and plaintiff appealed.

"The payee of the note as originally written was C. D. West. Plaintiff claims to be the holder in due course, for value, and without notice of any infirmities. The defense is that since the signing and delivery of said note it has been materially altered, mutilated, and changed in this manner: (1) That the relation of the parties to the instrument has been materially changed by inserting after the name of the payee, C. D. West, the word 'trustee' without the knowledge or consent of the defendant; (2) that the end of the note has been cut off, thereby cutting off "Payable a' in said note, and inserting 'Bk of' over 'Oran, Mo.,' and it is claimed this changed the place of payment; (3) and that some memorandum or writing has been cut off the end of said note, which memorandum or writing rendered said note non-negotiable; (4) that the note was executed on condition that certain merchandise and other property, including some real estate, assigned by Dirnberger to C. D. West as trustee for the benefit of creditors, would be returned to Dirnberger, and that this property was not returned, and that there was therefore no consideration for the note.

"It seems that Dirnberger, who had been conducting a grocery store, had not prospered, and was being pressed by creditors. In this situation he made an assignment, and C. D. West, adjuster for the Credit Men's Association of St. Louis, was made the assignee. The defendant signed the note with Dirnberger as accommodation maker. The note was filled out by defendant at his residence on a blank form taken from his blank note book at which time it was signed by Dirnberger and defendant, and was delivered to Dirnberger. A blank from defendant's note book was introduced at the trial, and by comparison the portion cut off clearly appears from the photographic copies in the record. Shortly thereafter Dirnberger delivered the note to H. E. Robocker, credit manager of Adam Roth Grocery Company. Robocker soon thereafter delivered the note to West, who on June 5, 1915, discounted the same at plaintiff bank, and the proceeds were deposited to his credit as trustee for Dirnberger, and paid out to the creditors of Dirnberger. Robocker testified that when he received the note from Dirnberger it was in the same condition as at the trial, except the 'Bk. of' was not on it, and it did not then, of course, bear the endorsement of C. D. West, trustee. C. L. Allen, assistant cashier of plaintiff bank, testified that when he discounted the note for his bank it was in the same condition as at the trial. West testified that he did not think the 'Bk of' was written on the note when he received it from Robocker, but that the word 'trustee' was in the note when he received it. It is conceded that the word 'trustee' was written, and that the end of the note was cut off and 'Bk. of' inserted, after defendant signed the note, and all this without his knowledge or consent. Two questions arise upon this record: (1) Is plaintiff a holder in due course? (2) Did the addition of 'trustee' and 'Bk of' and cutting off 'Payable a' under the circumstances so change the relation of the parties and the place of payment as to amount to a material alteration?"

After setting out the facts of the case thus, the Court of Appeals proceeded to apply to these facts the provisions of the Negotiable Instrument Law. [Laws 1905, pp. 243, et seq.] Having so applied its construction of divers sections (Secs. 10030, 10094, 10095, and 10022, R. S. 1909)...