Huston v. Tyler

Decision Date30 June 1896
Citation36 S.W. 654,140 Mo. 252
PartiesHUSTON v. TYLER.
CourtMissouri 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.

SHERWOOD, J.

Action for the sum of $2,500. The nature of the action best appears from the petition, which, omitting caption, etc., is the following: "That the defendant was at the time hereinafter mentioned, and now is, engaged, at the said city of St. Joseph, in the business of obtaining loans of money for others on their promissory notes, and that the plaintiff well knew him to be engaged in said business; that the defendant, at said city, on the 8th day of April, 1892, prosecuting the business aforesaid, * * * entered into a contract and agreement with the plaintiff by which the latter agreed to loan twenty-five hundred dollars upon the promissory note of the following parties, to wit, Thomas M. Smith, Pat Curtin, Philip Weckerlin, and Jane E. Smith, which said note the defendant undertook and agreed to procure and deliver to plaintiff; that thereafter the defendant presented and delivered to the plaintiff a promissory note for the sum of twenty-five hundred dollars, purporting to be signed by all of said parties, and represented to the plaintiff that it was the note agreed upon between them; that the plaintiff believed defendant's representation to be true, and, relying thereon, and being induced thereby, he loaned the sum of twenty-five hundred dollars upon said note, and delivered said sum to the defendant, and received said note; that the said note was not in fact signed by any of the parties whose names appear signed thereto, except Thomas M. Smith; that, on the contrary, the signatures of all the other parties to said note were forged thereto; that the said Thomas Smith was at all the times herein mentioned, and is now, insolvent; that payment of said note has been demanded of said Smith, and all the other parties whose names appear signed thereto, and payment has been refused; that no part of the said note, principal or interest, has been paid; that the plaintiff has tendered the said note to defendant, and has demanded of him payment of said sum of twenty-five hundred dollars, with interest thereon, which has been refused by defendant; that the plaintiff now tenders said note into court for the use of the defendant. Wherefore the plaintiff prays judgment against the defendant for the sum of twenty-five hundred dollars, with interest thereon at the rate of six per cent. per annum from said 8th day of April, 1892." The answer of defendant consisted, in substance, of a general denial, and then of the following: "Defendant admits that he was at the time mentioned in plaintiff's petition, engaged, at the city of St. Joseph, in the business of obtaining loans of money for others, which was known to plaintiff, and that, in the prosecution of said business, he did, on or about April 8, 1892, apply to plaintiff for a loan of twenty-five hundred dollars. But defendant states the fact to be that he did, at said time, at the instance and request of Thomas M. Smith, and as his agent only, apply to plaintiff for a loan of said sum of money for said Smith, fully informing plaintiff who his principal was, and that said Smith proposed the names of Pat Curtin Philip Weckerlin, and Jane E. Smith as his sureties; that, plaintiff having agreed to make said loan, defendant so informed said Smith, and received from him the note mentioned in plaintiff's petition, to be by defendant conveyed and delivered to plaintiff; that, as such agent of said Smith, defendant delivered said note to plaintiff, and received from him the amount of said loan, and paid the same to said Smith, less the commission due him for his services in negotiating said loan. Defendant states that he received said note from said Smith, believing all the signatures thereto were genuine, and plaintiff received the same from defendant, knowing at the time that defendant was acting, in the delivery thereof, and in the receipt of said money, as such agent of said Smith, and relying upon the representations of said Smith that the signatures thereto were genuine." 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, "Here's your note [or "the note"]. I want my money [or "the money"]." 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: "That is all right. You are good to me for the amount," — 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: "Tom Smith came to me and said he wanted to borrow $2,500. I told him I thought I could get the money. I went to my telephone, and telephoned Mr. Huston, and asked him if he had $2,500 to loan. Tom told me he wanted to give, as security, his aunt, Jane Smith, Patrick Curtin, and Philip Weckerlin. I told Mr. Huston that Thomas Smith wanted to borrow $2,500, and would give as security his aunt, Jane Smith, Patrick Curtin, and Philip Weckerlin. Mr. Huston asked me, `Is that a good note?' I told him I thought it was, but I preferred that he would make his own examination, and see to it. He says: `Then, I will do so. I will see to it, and let you know.' The next day Mr. Huston called me up, and said I could have the money on that Smith note." 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: "It don't make any difference. You had just as well make it to me, and I will settle with Smith," etc. Upon the attention of defendant, however, being called to the first part of his testimony, he said, by way of correction: "I first asked him, `Mr. Huston, have you got $2,500 to loan?' He said he had. I told him that Tom Smith wanted to borrow that amount, and said that he would give as security on his note, his aunt, Jane Smith, Patrick Curtin, and Philip Weckerlin." 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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