51 Mo. 95 (Mo. 1872), Seymour v. Farrell

• Judge: Judge Wagner concurs. Judge Bliss absent.
• Parties: W. B. SEYMOUR, Plaintiff in Error, v. JOHN FARRELL et al., Defendants in Error.
• Date: Invalid date
• Citation: 51 Mo. 95
• Court: Missouri Supreme Court
• Docket Number: .

Page 95

51 Mo. 95 (Mo. 1872)

W. B. SEYMOUR, Plaintiff in Error,

v.

JOHN FARRELL et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1872

Error to Washington Circuit Court.

G. I. Van Alen, for plaintiff in error.

Upon the face of the note, Farrell was not the payee, nor was he in any legal sense an indorser.

The law has fixed and settled the prima facie contract of the parties, and in order to prove a different contract or promise to pay, defendant should have pleaded it. ( Buchner v. Liebig el al., 38 Mo. 188; Schmidt v. Schmaelter, 45 Mo. 502; Bradford et al. v. Martin et al., 3 Sandf., N. Y., 647; Jones v. Jeffries, 17 Mo. 577; Bunce v. Beck, 43 Mo. 266.)

Reynolds & Relfe, with L. F. Dinning, for defendants in error.

Under our ??aw, Farrell was prima facie a joint maker ( Western Boatmen's Benevolent Asso'n v. Wolf, 45 Mo. 104, and authorities there cited; Kuntz v. Temple, 48 Mo. 71.) Under the law of Illinois, where this note was made, his liability was prima facie that of a guarantor. ( Camden v. McCoy et al., 3 Scam. 437; Carroll v. Weld, 13 Ill. 682; Webster v. Cobb, 17 Ill. 459 It was exclusively the province of the trial court to determine in what character he put his name on the back of the note. In Western Boatmen's Benevolent Asso'n v. Wolff, 45 Mo. 104, this court says: " In what character he put his name on the back of the note, was a question of fact within the exclusive province of the trial court to determine, and this court will not undertake to weigh the evidence." (See also Bonnell v. U. S. Express Co., 45 Mo. 423.)

OPINION

ADAMS, Judge.

This was an action on a promissory note brought by the plaintiff, as indorsee after maturity, against the defendants, charging them as joint makers. The contest was with the defendant Farrell, who signed his name on the back of the note, the other defendant having signed at the foot of the note. Farrell denied that he was maker, and claimed that he was only surety by way of indorsement or guaranty; and the whole question was whether he was one of the makers or a guarantor. He was not sued as guarantor, and there were no facts in the case to render him liable as such.

There was much evidence introduced on both sides on the main issue, and the case was submitted to the court sitting as a jury, and the court found for the defendants. Some depositions were filed in the case by the plaintiff which had been taken in Illinois, and they were...