Stix v. Matthews

• Decision Date: 31 October 1881
• Parties: STIX et al., Plaintiffs in Error, v. MATTHEWS.
• Court: Missouri Supreme Court

75 Mo. 96

STIX et al., Plaintiffs in Error,

v.MATTHEWS.

Supreme Court of Missouri.

October Term, 1881.

Error to Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Frank Titus for plaintiff in error.

Even if the first four notes were non-negotiable under the laws of Indiana, the petition alleged and the evidence is that the makers were non-residents of this State, and the defendants as assignees thereof, were liable. R. S. 1879, § 665.

Lathrop & Smith for defendant in error

NORTON, J.

This is a suit instituted by plaintiffs against defendants as indorsers on five notes as negotiable paper. There are five counts in the petition. In the first count the note declared upon was payable at the “Bank of Bedford, Lawrence county, Indiana;” in the second at the “Bedford Bank, Lawrence county, Indiana;” in the third at the “Bank in Bedford, Lawrence county, Indiana;” in the fourth at the “Bank in Bedford, Lawrence county, Indiana;” in the fifth the note was payable at the “Bank of Wheeling, West Virginia.”

This cause has heretofore been before this court, and is reported in 63 Mo. 371, when the judgment of the circuit court was reversed and cause remanded because of the refusal of the court to instruct the jury that there was no evidence that defendants had proper notice of the dishonor of the notes sued upon, and for that reason plaintiff could not recover. It was then held that, as to notes executed in and made payable in Indiana, the question of their negotiability was to be determined by the laws of Indiana. It was also held that the allegation in the petition “that payment of the notes was refused by the cashier of the branch, at Bedford, of the Bank of the State of Indiana, said bank being the place where said notes were payable” not having been denied by answer, that both the notes and certificates of protest were receivable in evidence, but that notice of protest not having been brought home or given to defendants, the court erred in refusing the instruction asked. It was also held that, the notes showing upon their face that they were to be paid in a bank in Indiana, and nothing else appearing, under section 6, article 2 of the statutes of that state, they were negotiable.

The record now before us presents a different state of case from that presented in the record when the case was here before. After the cause was remanded defendants were permitted to file an amended answer, in which, after denying every allegation of the petition, they aver that at the time of the execution of four of said notes, there were not, and had not been since, any such banks as those named in the said notes. The cause was re-tried on said answer, and after plaintiff had closed his case the court sustained a demurrer to the evidence and rendered judgment for defendants, and it is this action of the court of which plaintiffs chiefly complain, they having prosecuted their writ of error from said judgment.

1. PROMISSORY NOTES: negotiability: law of sister state.

The 6th section, article 2 of the statutes of Indiana, provides that “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 may recover as in case of such bills.” Under this section the supreme court of Indiana has held that a note, to be negotiable, must be made payable at a bank in Indiana; that the name of the bank must be correctly stated in the note; that a party to a note claimed to be negotiable is not estopped from denying that there was any such bank as that named in the note, or from proving that fact when averred in his answer. Porter v. Holloway,43 Ind. 35; Parkinson v. Finch, 45 Ind. 123; First National Bank of Kansas City v. Grindstaff, 45 Ind. 158. In the case last cited, the action was founded on two promissory notes executed by the defendants to Matthews & Bro., and indorsed by them to plaintiff....