208 S.W. 458 (Mo. 1919), The State ex rel. Mechanics-American National Bank v. Sturgis

Citation:208 S.W. 458, 276 Mo. 559
Opinion Judge:FARIS, J. --
Party Name:THE STATE ex rel. MECHANICS-AMERICAN NATIONAL BANK v. STURGIS et al., Judges of Springfield Court of Appeals
Attorney:Leahy, Saunders & Barth for relator. Gallivan & Finch and Oliver & Oliver for respondents.
Judge Panel:FARIS, J. Bond, C. J., concurs in result.
Case Date:January 25, 1919
Court:Supreme Court of Missouri
 
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Page 458

208 S.W. 458 (Mo. 1919)

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

Page 459

[276 Mo. 562] 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...

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