Gregory v. McCormick

• Decision Date: 06 March 1894
• Citation: 120 Mo. 657,25 S.W. 565
• Parties: GREGORY v. McCORMICK.
• Court: Missouri Supreme Court

25 S.W. 565

120 Mo. 657

GREGORY v. McCORMICK.

Supreme Court of Missouri, Division No. 1.

March 6, 1894.

SUIT BY FOREIGN ADMINISTRATOR — OBJECTION — HOW RAISED — AGREEMENT COLLATERAL TO NOTE — CONSTRUCTION — EFFECT.

1. An objection that plaintiff, foreign administrator, has no capacity to sue, if apparent on the petition, is waived by failure to raise it by demurrer.

2. Defendant's liability on the note in suit is not affected by an agreement, made at the time of its execution, reciting its execution and delivery by B. to plaintiff with defendant as a "joint maker," and providing that if, through B.'s default, defendant has to pay any part, the payee will indorse such payment as made by him, and deliver to him a proportional part of certain stock received by plaintiff from B. as collateral security.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by John G. Gregory, administrator of George H. Paul, deceased, against R. P. McCormick. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by BRACE, J.:

This is an action upon a promissory note, as follows: "$5,000.00. Kansas City, Mo., Feb. 21, 1890. Six months after date, for value received, I promise to pay to George H. Paul, or order, five thousand dollars, at the Commercial Bank of Milwaukee, Wisconsin, with interest after date at the rate of eight per cent. per annum until paid. Walter P. Bishop. R. P. McCormick. Due August 21, 1890." The petition is in the usual form on a negotiable promissory note, prefaced with the following averment: "Plaintiff states that on the 18th day of May, 1890, George H. Paul departed this life, and thereafter, to wit, on the 3d day of September, 1890, letters of administration on the estate of the said George H. Paul were duly granted to John G. Gregory, the plaintiff, by the probate court of Milwaukee county, state of Wisconsin, and that thereupon the plaintiff duly qualified as such administrator; that, as said administrator, the note herein sued on came into his possession, and that under the laws of the state of Wisconsin he is the person entitled to the proceeds of such cause of action, and is entitled to sue for same." By the answer, the execution of the note sued on by the defendant and Bishop was admitted; the death of the said Paul, and the appointment of the plaintiff as his administrator, as alleged in the petition, was put in issue; and it was therein averred that at the time of the execution of the note, and as a part of the same transaction, the following agreement in writing was entered into between said Paul and the defendant:

"Kansas City, Mo., Feby. 21, 1890. Whereas, Walter P. Bishop has this day executed and delivered to George H. Paul his promissory note, with R. P. McCormick as a joint maker with him thereon, and has placed with the said Geo. H. Paul, as collateral security for the payment of said note, fifty (50) shares of stock in the Ft. Scott Cement Manufacturing Co., now, therefore, it is agreed and understood, by and between said McCormick and Paul, that if said W. P. Bishop does not pay his said note, and should said McCormick have to pay the same, or any part thereof, for him, (Bishop,) that said Paul will indorse the amount or amounts of such payment on said note of the same date when paid, stating by whom paid, and an amount of stock equal to such payment in dollars shall be delivered to said McCormick as security for recovery of amount or amounts so paid. Geo. H. Paul. D. P. Thomas, Witness.

"I agree to the conditions of the above contract. Walter P. Bishop.

"Kansas City, Mo., Feby. 21, 1890."

The supposed legal effect of this agreement is thrice pleaded in the answer as a defense to this action. The reply was a general denial. On the trial the plaintiff gave in evidence letters of administration granted to him by the probate court of Milwaukee county, Wis., upon the estate of George H. Paul, deceased, dated September 30, 1890, and certain sections of the Revised Statutes of that state pertaining to the administration of the estate of deceased persons, read in evidence the note sued on, and rested. Thereupon the defendant demurred to the plaintiff's evidence, and, his demurrer being overruled, introduced James C. Reiger as a witness, whose evidence tended to prove the contemporaneous execution of the note and agreement aforesaid on the 21st of February, 1890, and that the consideration of the note was 50 shares of the capital stock of the Ft. Scott...