Noble v. Blount

• Decision Date: 30 April 1883
• Parties: NOBLE v. BLOUNT, Appellant.
• Court: Missouri Supreme Court

77 Mo. 235

NOBLE

v.BLOUNT, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Booher, Heren & Son for appellant.

Strong & Mosman for respondent.

PHILIPS, C.

This is an action by respondent, who was plaintiff below, against the appellant, who was defendant below, to recover for balance due on a promissory note executed to her by appellant. The answer admitted the allegations of the petition. The contention in the case is over the second count of the answer, in which the defendant pleaded, in substance, that after making the note sued on he became surety for plaintiff on a note executed by them to one Samuel Dysart, for $400. The answer further alleged that defendant derived no benefit from the last named note; that on the 9th day of March, 1876, prior to the commencement of this action, “he was compelled to and did pay off and discharge said note on which he was surety,” amounting to the sum of $643; that plaintiff knew before she sued he had so paid said note. Defendant asked that this sum be allowed him as a credit on the note sued on. To this new matter the plaintiff replied tendering the general issue. The only witnesses examined touching this issue were the plaintiff and defendant; and as the errors complained of and the conclusion arrived at by us can best be appreciated and comprehended by reference to their testimony, a statement of its essential features is necessary.

The defendant testified that he signed the Dysart note solely as surety for plaintiff, and was then ignorant of its consideration; that in January, 1876, as administrator of the estate of one Parrott, he had a settlement with Dysart; that “said estate and I took up said (Dysart) note;” that afterwards he mentioned this fact to plaintiff. At first she denied ever giving such a note, but on inspection admitted her signature to it. She said she was glad defendant had taken it up; it was the only way he would ever get anything out of Dysart. Or as interlined in the bill of exceptions, the plaintiff said, “I am glad of it, or it is a good thing you did it.” On cross-examination he denied any knowledge that this note was given for the purpose of preventing any one from administering on Parrott's estate, though he admitted there was some unseemly haste on the part of a certain sister-in-law to administer, and that there was some feeling in the matter. The plaintiff was his sister-in-law; and it was desired that he should administer. He became administrator, and at the sale of the property of the estate he permitted Dysart to purchase property without giving any security, although Dysart was insolvent. The probate court having held him responsible for this fund, he took up the Dysart note, made by him and plaintiff, in payment of the amount so paid over by him to said estate. He did not so take up this note at plaintiff's request. Dysart was his son-in-law.

Mrs. Noble testified in substance that she did not owe Dysart a cent. On the contrary he was indebted to her in large sums of money at the time Blount claimed to have taken up the note, and that Blount knew this fact at the time. The Dysart note was without consideration. The only inducement to its execution which she could suggest was that she and Blount being jointly interested in preventing the grant of letters of administration on the Parrott estate to their sister-in-law, it was stated by each of them that they “would rather than $200 she should not have letters,” and they may have given the note to compass her defeat. Dysart was present. During the whole six years Dysart held this note he never mentioned it to her. She held claims against him which she asserted exceeded the note in controversy, and which Blount knew of, for he drew them up. She never requested Blount to pay the Dysart note. She protested to Blount against selling Dysart any property at the administrator's sale without security, as he was worthless.

Blount did not return to the witness-stand in rebuttal of any of this new matter. Nor did he introduce Dysart as a witness.

1. THE JUDGMENT.

On this state of the pleadings and evidence, it is difficult to perceive how an intelligent and honest jury could find other verdict than the one it did, for the plaintiff, on this issue. The form of the verdict indicates that at least the foreman was intelligent and apprehensive. In fact, under the pleadings and proofs had the jury not found this issue for the plaintiff it would have been the plain duty of the trial judge, on application, to have promptly set aside the verdict. On this issue the burden clearly rested on the defendant to establish the relation of principal and surety. On the face of the note they were both principals prima facie. True, it was competent as between themselves to establish by parol the relation the makers sustained to each other. By defendant's failure to contradict plaintiff's testimony as to the presence of Dysart when the note was made, the presumption was that he was so present; and as the law placed the burden on the defendant, why did he not call Dysart, his son-in-law, or account for his absence? Indeed, had it not been for the fact that in law the promissory note itself imported a consideration, when the defendant rested his case, the plaintiff could have successfully demurred to his evidence; for his own evidence disproved the allegation of his answer, that he “was compelled to pay off said note in full.” On the contrary, he testified that he took it up solely to protect himself against his improvidence in administering Parrott's estate. He was scheming and speculating in fact to make his widowed sister-in-law re-imburse him for a loss, impending on trusting an impecunious son-in-law with assets of the estate against the protestations of this very widow.

The evil disposition of this party is likewise manifested from his answer, which further weakens the justice of his appeal. He alleges that he paid this Dysart note on the 9th day of March, 1876, and alleged that the principal and interest aggregated then $643. The note only bore six per cent interest, and on March 9th, 1876, would have amounted to only $542.66. Nor does it anywhere appear from his evidence how much Dysart owed Parrott's estate, or how much he really allowed or paid to Dysart on the surrender of the note. In fact, his testimony was that “said estate and I took up the said note.” How much of it the “estate took up,” and how much the defendant, it was impossible for the jury to find. The measure of his recovery from Mrs. Noble would have been the sum actually paid with six per cent interest from the date of payment.

2. INSTRUCTIONS.

We have been thus full in the presentation of the merits of this case, on the undisputed facts, in order to show that even conceding the errors complained of by appellant in the instructions given, the jury were not likely, if indeed they could have been, misled to appellant's injury; for it must alike result from the positive provisions of our practice act, as from that spirit of conservatism in our courts that would not sacrifice the ends of justice upon the sharp edge of technicality, that although some one out of a number of instructions given may be faulty, yet where the conclusion reached by the jury is manifestly right, and a different result could not have been reached by them without injustice, the verdict ought not on this account to be disturbed. R. S., § 3569; Blewett v. R. R....