76 Mo. 439 (Mo. 1882), Union Nat. Bank v. Hunt

Citation:76 Mo. 439
Opinion Judge:HENRY, J.
Party Name:THE UNION NATIONAL BANK v. HUNT, Appellant.
Attorney:Noble & Orrick for appellant. James O. Broadhead & Wm. F. Broadhead for respondent.
Judge Panel:HENRY, J.
Court:Supreme Court of Missouri
 
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Page 439

76 Mo. 439 (Mo. 1882)

THE UNION NATIONAL BANK

v.

HUNT, Appellant.

Supreme Court of Missouri.

October Term, 1882

Appeal from St. Louis Court of Appeals.

REVERSED.

This is an action on a promissory note made by the defendant, Theodore Hunt, and indorsed by Charles L. Hunt. There is an allegation that the indorser waived demand and notice. As to this the jury found for the indorser, and as to his liability nothing more need be said. The petition alleges that the defendant Theodore Hunt purchased of Aull & Pollard one hundred shares of stock in the bank of the corporation plaintiff, at eighty cents on the dollar, in consideration of which, a note at four months for $8,000, made by Theodore and indorsed by Charles Hunt, was given to Aull & Pollard, and the stock transferred to Theodore Hunt; and the note was assigned to plaintiff for value, before maturity, by Aull & Pollard; that at the maturity of that note, defendants requested an extension, and in consideration thereof executed the note in suit, which is dated June 4th, 1873, and is for the same amount and time as the note of which it is a renewal.

The defendants admit the execution and indorsement of the note in suit, and that plaintiff was a banking corporation under the laws of the United States; and deny the other allegations of the petition, and set up two distinct grounds of affirmative defense. First, they say that the plaintiff had purchased seven hundred and eighty shares of the stock of its own corporation, in violation of the act of Congress, which prohibits such a bank to purchase or hold its own shares, or to make a loan upon them, except such security or purchase shall be necessary to prevent loss of a debt previously contracted in good faith; and that, having and illegally holding these shares, plaintiff contrived that one hundred of these shares, should be regarded as the property of Theodore Hunt, and that he should borrow from the bank $8,000 on such shares, and deposit them as collateral security for his notes; and the note sued on was a renewal of the note given to carry out this illegal transaction, and represents a discount made by the bank on the security of its own shares, in violation of law. The second affirmative defense is, that the note was obtained by false and fraudulent representations, and that the consideration has failed. The particulars of this defense are set out in the answer with great detail.

The testimony of Charles Hunt was to the effect that he is the father of his co-defendant, Theodore Hunt; that he was on terms of intimacy with Aull, the president, and with Pollard, the vice-president of the plaintiff, and with some of the...

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