Stix v. Mathews

• Decision Date: 31 October 1876
• Citation: 63 Mo. 371
• Parties: LOUIS STIX, et al., Respondents, v. A. B. MATHEWS, et al., Appellants.
• Court: Missouri Supreme Court

63 Mo. 371

LOUIS STIX, et al., Respondents,

v.A. B. MATHEWS, et al., Appellants.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jackson Special Law and Equity Court.

Ermine Case, Jr., for Appellants.

I. The notes are not alleged to be negotiable, and are reahy on their face non-negotiable, nor are such facts charged as will bind assignors of non-negotiable paper.

II. Defendants are not alleged to be partners. There is a variance between the allegations and the note, as to the place of demand. The “Branch at Bedford of the Bank of the State of Indiana,” and the “Bank of Bedford, Lawrence county, Indiana,” are two very different places.

No proper demand was made. The notes appear to be protested at the “Branch of Bedford of the Bank of the State of Indiana,” whereas the notes are all made payable at the “Bedford Bank, Lawrence county, Indiana.”

White & Titus, for Respondents.

I. The notes sued on are negotiable promissory notes, according to the laws of the State of Indiana, where they were executed and made payable, and where their indorsement by defendants occurred, and the law of the place of contract governs as to the construction of their terms and legal effect. (2 Ind. Stat. ch. 6, §§ 1, 6, 16; 2 Pars. Bills [1 ed.], 317, et seq.; 2 Pars. Cont. [5 ed.], 583 et seq.; Price vs. Page & Bacon, 24 Mo. 65; Boulden vs. Page & Bacon, 24 Mo. 594.)

II. It is unnecessary, in order to recover against defendants, to allege that they are partners. (Gates vs. Watson, 54 Mo. 585, and cases cited.)

III. There was no variance between the notes and the allegations in the petition. The bank at which all the notes were alleged to be payable, is the same bank at which they were respectively made payable, and said facts are admitted to be true, by the failure of defendants to deny the same. (Bank of the State of Mo. vs. Vaughan, 36 Mo. 93.)

IV. The certificates and affidavits of protest were also properly read in evidence, the same reason for their admission applying as in case of the notes. (Jarvis vs. Garnett, 39 Mo. 268.)NORTON, Judge, delivered the opinion of the court.

This is a suit brought by plaintiffs against defendants, as indorsers on five negotiable notes.

There are five counts in the petition, in each of which it is alleged that the notes were payable to defendants, and by them indorsed to one Sloan, and by Sloan indorsed to plaintiffs; that four of said notes were made payable at the bank in Bedford, Lawrence county, Indiana; that they were negotiable notes, and were duly protested for non-payment, of which due notice was given the defendants; that the makers of said notes were non-residents of the State, and that payment of said notes was demanded of defendants and payment refused.

Defendants, by answer, deny the transfer of said notes, the protest and notice of the same, or that they were negotiable.

On the trial the defendants objected to the introduction, as evidence, of the notes set out in the petition, on the ground that they were not negotiable, for want of the words “value received;” also upon the ground that the petition did not charge that the defendants were partners, and that there was a variance between the notes and the allegations of the petition, and because there was no averment that the notes were due.

The notes offered in evidence were not negotiable under the laws of this State, for the reason assigned by defendant, and if they had not shown on their face that they were payable in the State of Indiana, and the evidence which had already been introduced had not shown that they were not only made in Indiana, but were to be executed there, the objection to their introduction as evidence might well have been sustained. But it is well settled that a contract made in one State, and to be there executed, is to be construed according to the laws of that State. (2 Pars. Cont. 586.) The notes upon their face showing that they were to be paid in Indiana, and the statement of the witness that they were made in Indiana, subjects them to the operation of the above rule. Applying the 6th section of chapter 6, vol. 2, Statutes of Indiana to the notes in question, they come within the rules governing negotiable paper. The language of the act is; “Notes payable to order or bearer in a bank in this State, shall be negotiable as inland bills of exchange, and the payees and indorsees thereof may recover as in case of such bills.”

The objection to the introduction of the notes, because they were indorsed respectively, “S. S. Matthews & Bro.,” “Matthews & Bro.” and “Matthews & Hill,” and there was no partnership averred in the petition, was properly overruled. The principle that evidence is admissible to show partnership between defendants without an averment of partnership in the petition, was asserted by this court in the case of Lessing vs. Sulzbacher (35 Mo. 445), and re-asserted in the case of Gates vs. Watson (54 Mo. 585).

The objection that the notes should not have been...