Huston v. Tyler
Decision Date | 30 June 1896 |
Citation | 36 S.W. 654,140 Mo. 252 |
Parties | HUSTON v. TYLER. |
Court | Missouri Supreme Court |
1. A complaint alleged that defendant was engaged in obtaining loans for others on notes, which was well known to the plaintiff; that defendant, while so engaged, contracted with plaintiff to loan a certain sum upon the note of certain parties named, which note defendant agreed to procure for plaintiff; that thereafter defendant delivered to plaintiff a note purporting to be signed by the parties named; that plaintiff, believing defendant's representations, and being induced thereby, loaned the money, delivering the amount to defendant, and receiving the note. Held, that the pleading must be construed as a complaint in assumpsit on the alleged express agreement to procure and deliver to plaintiff the note of the parties named, in default of proof of which plaintiff cannot recover.
2. Defendant, having disclosed to plaintiff that he was acting only as agent for the maker of the note in procuring the loan, is not responsible for fraud of the maker rendering the note worthless.
3. The question whether the agency of defendant was made known to plaintiff, in view of a conflict of evidence, was for the jury.
4. Where there is a conflict of evidence, a peremptory instruction to find for one of the parties is error.
Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.
Assumpsit by Samuel P. Huston against John F. Tyler. There was judgment for plaintiff, and defendant appeals. Reversed.
Thos. J. Porter, B. R. Vineyard, and Ben J. Woodson, for appellant. Brown & Pratt, Vinton Pike, and Willard P. Hall, for respondent.
Action for the sum of $2,500. The nature of the action best appears from the petition, which, omitting caption, etc., is the following: The answer of defendant consisted, in substance, of a general denial, and then of the following: Plaintiff's reply was a general denial, etc.
The evidence on part of plaintiff himself tended to show that, while he was in his office, on the 6th or 7th of April, 1892, he received a message over the telephone from defendant, asking if he would loan $2,500 for three months on the following names: Thomas M. Smith, Pat Curtin, Philip Weckerlin, and Jane Smith. Defendant, being asked by plaintiff if they (the above named parties) would make a good note, replied, "It would be a A 1," or "gilt-edged," or something of that kind, but that plaintiff had better investigate the solvency for himself. On investigation plaintiff ascertained that, though Thomas Smith had nothing, yet the others were large property owners, etc. Plaintiff then called defendant by telephone, and told him he would make the loan, when defendant replied, "I will get up the note [or "get the note"], and bring it to you." On the morning the note bears date, defendant came into plaintiff's office, and said, That thereupon plaintiff asked to whom the check for the amount was to be given, when defendant replied, "Myself; it is to be in my name." Whereupon plaintiff said: — and drew a check for $2,500, payable to defendant, handed it to him, and received in return from defendant a note for a like sum, due in three months, on which note were the names which had been mentioned over the telephone. Defendant did not state to plaintiff for whom he was obtaining the money, but plaintiff did not suppose defendant was getting the money for himself, but supposed he was getting the money for those whose names were on the note. When the note fell due it was not met, and it was ascertained that the names of all on it but Thomas Smith's were forgeries; and it was admitted at the trial, on part of plaintiff, that, in all of defendant's transactions connected with the note, defendant acted in good faith, and without knowledge of the nongenuineness of the signatures aforesaid. Testifying on his own behalf, defendant at first said: Defendant further detailed in evidence that Smith, on being informed that he could get the money, signed a note for $2,500 prepared for him by defendant, and gave it to one Asbury to have it signed by the other parties to it, and on the return of Asbury with only two of the names of the promised parties to it, Smith went out to get his aunt's signature to it, and shortly thereafter returned with the name of his aunt on the note; that there upon defendant took the note over to plaintiff's office, and, on being asked by him, "How will you have the check made, — to you, or to Smith?" replied: etc. Upon the attention of defendant, however, being called to the first part of his testimony, he said, by way of correction: In this statement defendant is fully supported as to the language he stated he used, by Miss Maggie Quinliven, who testified that defendant went to the telephone, called up Mr. Huston, and asked him if he had $2,500 to loan, and then he said: "Tom Smith wants to borrow...
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