Taylor v. Fuqua
| Decision Date | 02 March 1920 |
| Parties | ADDIE E. TAYLOR, Respondent, v. R. E. FUQUA, and J. G. FUQUA, Defendants, J. G. FUQUA, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Audrain County.--Hon. Samuel Davis Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Frank C. Hendrix for appellant.
Berryman Henwood of counsel.
(1) The respondent is not the legal owner and holder of the notes in suit and, therefore, cannot maintain this action. Section 1112, R. S. 1909; Laws of Mo. 1915, page 146, sec. 90; Bank v. Sloop et al., 200 S.W. 72; Bank v Lyons, 220 Mo. 554; Bank v. Bank, 244 Mo. 580 599; Hume v. Eagon, 83 Mo.App. 583; Vansandt v. Hobbs, 84 Mo.App. 632; Powers v. Woolfolk, 132 Mo.App. 363; Miles v. Bank, 187 Mo.App. 238; Musgrove v. Bank, 187 Mo.App. 492. (2) The notes sued on were not admitted nor even offered in evidence, and, therefore, the judgment herein, based upon these notes, cannot stand. Encyc. of Evidence, page 469; Byerly v. Sun Co., 181 F. 138; Reed Bros. v. Nicholson, 158 Mo. 631; State ex rel. v. Crumb, 157 Mo. 561; Hickory County v. Fugate, 143 Mo. 79; Majors v. Maxwell, 120 Mo.App. 285; Pomeroy v. Fullerton, 113 Mo. 453; Vaughn v. Daniels, 98 Mo. 234.
R. D. Rodgers for respondent.
The record herein discloses that early in 1913, defendant, R. E. Fuqua, son of defendant J. G. Fuqua, rented from plaintiff certain lands (the transaction being conducted, it is said, with plaintiff's husband); and that two notes, each of date February 10, 1913, were executed by said R. E. Fuqua and delivered to plaintiff for the amount of said rents. One of these notes was for the sum of $ 400, due 319 days after date, and the other was for the sum of $ 125, due 166 days after date. Both bear the names of R. E. Fuqua and J. G. Fuqua, as makers; the latter, however, denies that he executed the instruments or authorized any one to affix his name thereto.
Prior to maturity, both of these notes were transferred by the plaintiff to the Vandalia Banking Association, a banking corporation of this State, by assignment executed by plaintiff upon the back of each note. And it appears that plaintiff's husband also signed the assignment on the back of the note for $ 400. It further appears that after maturity of both notes, sometime in 1914, the notes remaining unpaid, the Vandalia Banking Association instituted an action in the Circuit Court of Audrain County against R. E. Fuqua, J. G. Fuqua and this plaintiff and her husband. The record of the proceedings in that action are not before us in this record; but it is said that the cause was tried before a jury, and that the jury were unable to agree as to the liability of J. G. Fuqua and R. E. Fuqua, but returned a verdict against this plaintiff. In any event the evidence is that the plaintiff in that action, the Vandalia Banking Association, dismissed the action as to J. G. Fuqua and R. E. Fuqua, and that judgment was entered in its favor against this plaintiff, on both of said notes; the notes having been filed as exhibits in the case. With the matter in that shape, on May 2, 1916, the cashier of the Vandalia Banking Association wrote a letter to the Clerk of the Circuit Court of Audrain County, directing him to deliver the two notes to this plaintiff, upon plaintiff furnishing to the clerk copies thereof. This letter concluded with the statement: "She (Addie E. Taylor) desires to bring suit on said notes against the two Fuquas who appear on the face thereof as makers." In compliance with this direction the clerk delivered the notes to plaintiff, and on June 3, 1916, plaintiff instituted this action against R. E. Fuqua and J. G. Fuqua. Thereafter, towit, on December 6, 1916, the board of directors of the Vandalia Banking Association passed a resolution which purported to approve and ratify the action of the bank's cashier in directing the clerk of the circuit court to deliver these notes to plaintiff.
The petition herein is in four counts. In the first count plaintiff declares upon the note for $ 400 and interest, as the payee and holder thereof; the note being filed therewith as an exhibit.
In the second count plaintiff pleads the execution of this note by defendants, to plaintiff's order; that plaintiff indorsed it, waiving notice and protest, and transferred and delivered it to the Vandalia Banking Association, whereby she became jointly liable with these defendants for the payment thereof, "but that her liability was that of a surety only as between this plaintiff and the defendant herein." It is then alleged that after maturity the bank brought suit thereon against these defendants, this plaintiff and plaintiff's husband; that such proceedings were had therein that the bank dismissed the action as to defendants R. E. Fuqua and J. G. Fuqua, but obtained judgment against plaintiff and her husband for the amount of the note, and interest; that the judgment is a lien upon lands owned by plaintiff in said Audrain county, and that she is liable to pay the same with accrued costs; and that by reason of the premises defendants have become indebted to plaintiff in the amount of the judgment, with interest thereon, and for the costs of the prior action, for which judgment is prayed.
In the third count plaintiff declares upon the note for $ 125 and interest, as the payee and holder thereof.
The fourth count proceeds upon the same theory as does the second count, viz., that plaintiff is entitled to recover as against these defendants the amount of the judgment obtained against her by the bank on account of her indorsement or assignment of the note for $ 125, with interest and the costs of the prior action.
In the present action R. E. Fuqua filed no answer and the case was dismissed as to him. It may be inferred that no service was had upon him.
Defendant J. G. Fuqua filed an answer denying, under oath, the execution by him of the notes or either of them.
The trial, before the court and a jury, resulted in a verdict on the first and third counts of the petition for the respective amounts of the two notes with interest. Judgment followed accordingly, from which defendant J. G. Fuqua prosecutes this appeal.
But two points are made by appellant's learned counsel. One of these is that the notes sued upon were not introduced in evidence. An examination of the record shows that though the notes were annexed to the petition as exhibits, and were referred to in the testimony, they were never offered in evidence. As exhibits they formed no part of the petition, and a judgment which purports to be based upon them has no foundation upon which to stand. [See Reed v. Nicholson, 158 Mo. 624, l. c. 631, 59 S.W. 977; Majors v. Maxwell, 120 Mo.App. 281, l. c. 285, 96 S.W. 731; State ex rel. v. Crumb, 157 Mo. 545, l. c. 561, 57 S.W. 1030.] This alone would compel a reversal of the judgment and a remanding of the cause.
The second question raised, however, is a still more serious one, for the reason that if it be well taken plaintiff can obtain no judgment upon the notes in this present action. The point is, that the bank's cashier, in the absence of antecedent authority conferred upon him by the board of directors of the bank, was without power to transfer these notes, or cause them to be transferred back to plaintiff so as to vest title thereto in her. At the trial below appellant's counsel objected to the introduction in evidence of the letter written by the bank's cashier to the clerk of the circuit court, upon the ground mentioned, and in like manner objected to the introduction of the subsequent resolution of the bank's board of directors. While the objection to the letter was overruled, the court, having first sustained an objection to the introduction of the resolution, afterwards permitted a part thereof to be read in evidence. In making his objection appellant's counsel read a portion of the resolution, which, it appears, recited that by the cashier's direction to the clerk to deliver these notes to plaintiff, the cashier and the bank intended to "release and relinquish all right, title, interest or claim" of the bank to the notes. This part of the resolution was excluded from evidence.
The contention of appellant's learned counsel proceeds upon the theory that the act of the cashier in directing the notes to be delivered by the clerk to plaintiff was in contravention of section 90, Article II of the Act of 1915, relating to banks, trust companies, etc. [Laws 1915, pp. 146, 147.] This act repealed Articles I, II and III of Chapter 12 of the Revised Statutes of 1909, and certain amendatory acts, and enacted in lieu thereof three new articles. Section 90, supra, of the Act of 1915, reenacted section 1112, Revised Statutes 1909, with certain amendments or changes. Section 1112, as it appears in the revision of 1909, provides as follows:
[Italics ours.]
Section 90 of...
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