Blesse v. Blackburn

• Decision Date: 22 May 1888
• Citation: 31 Mo.App. 264
• Parties: AUGUST F. BLESSE, Respondent, v. CATHERINE P. BLACKBURN et al., Appellants.
• Court: Missouri Court of Appeals

31 Mo.App. 264

AUGUST F. BLESSE, Respondent, v. CATHERINE P. BLACKBURN et al., Appellants.

Court of Appeals of Missouri, St. Louis.

May 22, 1888

Appeal from the St. Charles Circuit Court, HON. WILLIAM W. EDWARDS Judge.

Affirmed.

T. F MCDEARMON and C. W. WILSON, for the appellants: The court erred in admitting any testimony in relation to the alleged signature of A. H. Beyl on the back of the note in suit. It was not necessary for him to indorse in order to entitle plaintiff to recover. A transfer by delivery was sufficient. Patterson v. Cave, 61 Mo. 439; 1 Danl. Neg. Inst secs. 729, 741. The trial court erred in admitting in evidence the J. Phil. Hoehn check and the Union Savings Bank book, for the purpose of proving the signature on the back of the note to be that of A. H. Beyl, or for any other purpose. State v. Clinton, 67 Mo. 380, 383, 385; 1 Greenl. Evid., sec. 580; State v. Scott, 45 Mo. 304, 305, 306; Rose v. Bank, 91 Mo. 399. It was error to permit the plaintiff to examine the witnesses Beyl, J. P. Hoehn, W. W. Kirkpatrick, Jno. E. Stonebraker, and J. H. Alexander in relation to the identity of the signature or handwriting on the back of the note and check, and erred in admitting any of said testimony. Rose v. Bank, 91 Mo. 399; State v. Clinton, 67 Mo. 380. It was equally erroneous to admit this testimony on cross-examination. Rose v. Bank, 91 Mo. 380, 402, 403. If Ruenzi, one of the makers, produced the money and took up the note, it was a payment, and discharges the note. 2 Danl. Neg. Inst., p. 250, sec. 1221; Wolff v. Walter, 56 Mo. 292; Quigley v. Bank, 80 Mo. 289. It cannot be shown that he was acting as the agent of Blesse, so as to convert Blesse into a purchaser. 2 Danl. Neg. Inst., p. 251, sec. 1222. As the court sat as a jury in the trial of this cause, the rules as to the admission of evidence must be applied with the same stringency as if the cause had been submitted to a jury.

CARL DAUDT, for the respondent: The court did not err in permitting the plaintiff to prove that Beyl assigned said note to plaintiff. It may be conceded that no endorsement by the payee was necessary to enable the plaintiff to maintain an action thereon in his own name; that transfer by delivery was sufficient. The issue, however, was plainly made by the pleadings, and plaintiff necessarily was put to his proof on that issue. Furthermore, a transfer by delivery of the note sued on did not invest the plaintiff with its legal title, but only with its equitable title, with the right to maintain an action thereon in his own name. Boeka v. Nuella, 28 Mo. 180; Quigley v. Bank, 80 Mo. 295. In order to prove that plaintiff held the legal title, that he was the legal holder of the note, it devolved on him to prove the written endorsement. The court did not err in admitting in evidence the I. P. Hoehn check. The witness Beyl, in his examination in chief, had positively sworn that the name " Henry Beyl" on the back of the note was not his signature; that he never signed his name in that way; that he always wrote his name on checks and notes " A. H. Beyl." Can it be pretended that it was not legitimate cross-examination to show that the witness, within a few months after said transaction, had endorsed his name on checks in the manner claimed by plaintiff? The J. P. Hoehn check was admitted by Beyl, in his cross-examination, to be genuine. Upon that admission, the check was introduced in evidence to enable the experts to use the same as a standard of authority, and to enable the court to make the comparison. Rose v. Bank, 91 Mo. 399. The only issue presented by this record is a question of fact. Did the plaintiff purchase the note, as alleged in his petition, or was that note paid as alleged in defendants' answer? This question of fact the trial court decided in favor of the plaintiff. The declarations of law given in the case are conceded to be correct. The judgment ought, therefore, to be affirmed.

OPINION

THOMPSON J.

This action is brought upon a promissory note for the sum of two hundred and fifty dollars, executed May 11, 1881, payable eighteen months after date, to the order of Henry Beyl bearing interest from date at the rate of eight per cent. per annum, jointly signed by the defendant, Catherine P. Blackburn, who is the principal debtor, and the defendant Feuerstein and also Joseph W. Ruenzi, as...