Home Trust Co. v. Josephson

• Decision Date: 02 July 1936
• Docket Number: No. 33624.,33624.
• Citation: 95 S.W.2d 1148
• Parties: HOME TRUST COMPANY, a Corporation, Appellant, v. REUBEN JOSEPHSON.
• Court: Missouri Supreme Court

95 S.W.2d 1148

HOME TRUST COMPANY, a Corporation, Appellant, v. REUBEN JOSEPHSON.

No. 33624.

Supreme Court of Missouri.

Court en Banc, July 2, 1936.

[95 S.W.2d 1149]

Appeal from Jackson Circuit Court. — Hon. C. Jasper Bell, Judge.

REVERSED AND REMANDED (with directions).

I.J. Ringolsky, Wm. G. Boatright, Harry L. Jacobs, Ringolsky, Boatright & Jacobs and David E. Glatt for appellant.

(1) Plaintiff's case was made by documentary evidence and defendant's admissions. Defendant introduced no evidence. Plaintiff was entitled to a directed verdict. Wolff v. Campbell, 110 Mo. 114, 19 S.W. 622; Cowell v. Employers' Indemnity Co., 326 Mo. 1103, 34 S.W. (2d) 705; Downs v. Horton, 287 Mo. 435, 230 S.W. 103; Roach-Manigan Pav. Co. v. Surety Ins. Co., 238 S.W. 121; Lumber Co. v. Railroad Co., 243 Mo. 245, 147 S.W. 1052; Lindhorst v. Terry, 1 Mo. App. 604; Aetna Inv. Co. v. Landscape & Floral Co., 227 Mo. App. 17, 50 S.W. (2d) 195; Sturdivant Bank v. Houck, 215 S.W. 758; U.S.F. & G. Co. v. Calvin, 7 S.W. (2d) 732; Trimble v. Edwards, 220 Mo. App. 160, 281 S.W. 121; Ferguson & Wheeler v. Venice Trans. Co., 79 Mo. App. 360; Furth v. Cafferata, 240 S.W. 476; Ensign v. Crandall, 207 Mo. App. 211, 231 S.W. 675; Skinner v. Johnson, 74 S.W. (2d) 71; Bross v. Stancliff, 211 Mo. App. 342, 240 S.W. 1091; Cases under (d) post. (a) Defendant's pleaded defense that notes were assigned for plaintiff's accommodation and with agreement that he should not be liable thereon was unsupported by evidence. Failure of consideration is an affirmative defense. Sec. 954, R.S. 1929; Smith v. Ins. Co., 320 Mo. 146, 6 S.W. (2d) 927; Thompson v. McCune, 333 Mo. 758, 63 S.W. (2d) 43. (b) Defendant's pleaded defense that default in the notes was brought about by plaintiff fraudulently and that plaintiff fraudulently caused the security to be foreclosed for less than it was worth is unsupported by evidence. The fact of default is not denied. Moreover, the allegation in defendant's answer, following specific admissions and defenses, denying each and every other allegation of the petition is ineffective. Long v. Long, 79 Mo. 644; Dezell v. Fidelity & Cas. Co., 176 Mo. 279, 75 S.W. 1102; James v. Bailey Reynolds Chand. Co., 325 Mo. 1054, 30 S.W. (2d) 125; Cowell v. Employers' Indemnity Corp., 326 Mo. 1103, 34 S.W. (2d) 708. (c) Defendant's pleaded defense denying that for value he endorsed the notes is untenable because his admitted signature to the assignment and transfer on the back of each note constituted an indorsement. Jacobs v. Gibson, 77 Mo. App. 244; Maddox v. Duncan, 143 Mo. 613, 45 S.W. 688; Leahy v. Haworth, 141 Fed. 850; Farnsworth v. Burdick, 94 Kan. 749, 147 Pac. 863; Thorp v. Mindeman, 123 Wis. 149, 101 N.W. 417, 68 L.R.A. 146; Davis v. Francisco, 11 Mo. 572, 49 Am. Dec. 98; Prichard v. Strike, 66 Utah, 394, 243 Pac. 114; Divelbiss v. Burns, 161 Miss. 724, 138 So. 346; 44 A.L.R. 1353; 8 C.J. 354, sec. 532. (d) Defendant's pleaded defense that the notes were assigned without recourse is unsupported by any testimony. Moreover, since defendant's answer is not verified, the execution of the written instrument sued on is confessed. Sec. 965, R.S. 1929; Rothschild v. Frensdorf, 21 Mo. App. 318; Smith Middlings Purifier Co. v. Rembaugh, 21 Mo. App. 390; Beck & Pauli Lith. Co. v. Obert, 54 Mo. App. 240; Avery Co. v. Powell, 174 Mo. App. 628, 161 S.W. 335; Jackson County v. Enright, 198 Mo. App. 527, 201 S.W. 599; Love v. Cent. Life Ins. Co., 92 Mo. App. 192. If by this allegation defendant intended to claim an alteration, there was no support for the claim in the testimony. The mere fact that a printed form had been adapted by typewriting to the particular use of the parties does not make an issue as to whether the note has been altered, there being no suspicious circumstances. McCormick v. Fitzmorris, 39 Mo. 33; Paramore v. Lindsey, 63 Mo. 63; Downs v. Horton, 287 Mo. 414, 230 S.W. 103; Fitzgerald v. Barker, 85 Mo. 22; Whetsel v. Forgey, 323 Mo. 681, 20 S.W. (2d) 523, 67 A.L.R. 476. (e) The last defense urged by defendant was that there was no evidence of presentment, demand or notice. This alleged defense was not pleaded in the answer. Moreover, since defendant admitted that he, at all times, had no intention of ever paying the note, presentment, demand and notice would have been useless and same were waived. Anderson v. Long, 1 Mo. 365; Harness v. Davies County Savings Assn., 46 Mo. 360; Warrensburg Co-Op. Bldg. Assn. v. Zoll, 83 Mo. 98; 8 C.J., sec. 895, p. 639, sec. 959, p. 683; Westinghouse Elec. & Mfg. Co. v. Hodge, 181 Mo. App. 232, 167 S.W. 1186; Bogy v. Keil, 1 Mo. 743; Haviland v. Continental Natl. Bank, 253 Mo. 292, 161 S.W. 741; Sec. 2708, R.S. 1929. (2) There was no error in the peremptory instruction which fixed the amount of the verdicts. Where the amount of recovery is not in issue the court may direct the jury as to the amount of its verdict. This should be true as to interest as well as principal. (a) It has been held reversible error for the trial court to instruct the jury as to the amount of its verdict. Sec. 973, R.S. 1929; Cates v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; Poulson v. Collier, 18 Mo. App. 604; Ryors v. Prior, 31 Mo. App. 555; Dyer v. Combs, 65 Mo. App. 152; Corbitt v. Mooney, 84 Mo. App. 647; Calkins v. Bank, 99 Mo. App. 509; Dawson v. Wombles, 111 Mo. App. 532, 86 S.W. 271; Connelly v. Railroad Co., 120 Mo. App. 652, 97 S.W. 616; Locher v. Kuechenmeister, 120 Mo. App. 724, 98 S.W. 92; Kroge v. Modern Brotherhood of America, 126 Mo. App. 703, 105 S.W. 685; Lederer v. Morrow, 132 Mo. App. 443, 111 S.W. 902; Johnson v. Grayson, 230 Mo. 380, 130 S.W. 673; Boutross v. Miller 223 S.W. 891; Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 612; Beckley v. Hickerson, 315 Mo. 400, 286 S.W. 74; Mercantile Trust Co. v. Dulle, 282 S.W. 414. (b) It has also been held that it is not reversible error to direct the amount of the jury's verdict. Henderson v. McPike, 35 Mo. 255; Wells v. Zallee, 59 Mo. 509; Doud v. Reid, 53 Mo. App. 561; State ex rel. v. Laundry, 196 Mo. App. 627; McCormick v. Hickey, 24 Mo. App. 368; Beekman Lbr. Co. v. Acme Harvester Co., 215 Mo. 251, 114 S.W. 1087; Machine Co. v. Blair, 181 Mo. App. 593, 164 S.W. 656; Moore v. McHaney, 191 Mo. App. 686, 178 S.W. 258; Forge Co. v. Engine Co., 135 Mo. App. 86, 115 S.W. 507. (c) It is now held, however, that it is not error to direct the amount when that amount is not in issue. (d) However, this is only held as to principal and not as to interest. Farmers' Bank v. Stamper, 250 S.W. 961; Krause v. Spurgeon, 256 S.W. 1074; Lumber Co. v. Rieth, 258 S.W. 33; Hackett v. Dennison, 223 Mo. App. 1213, 19 S.W. (2d) 544; King v. Spitcaufsky, 224 Mo. App. 923, 28 S.W. (2d) 436. (e) However, it is held proper to instruct the jury to allow interest at a stated rate on a stated principal amount from a stated date. Lumber Co. v. Rieth, supra; Farmers' Bank v. Stamper, supra. (f) There is no reason for any distinction between principal and interest and the courts have frequently commented on this inconsistency. Ward v. Bowman, 228 S.W. 833; Beckley v. Hickerson, 257 S.W. 822; Hackett v. Dennison, supra; N.Y. Trust Co. v. Ry. Co., 251 Fed. 517; Mercantile Trust Co. v. Dulle, supra. (g) Where the amount of neither principal nor interest are in issue, if there is technical error in directing the amount thereof it should be held harmless and not reversible error. Sec. 1062, R.S. 1929; Beekman v. Harvester Co., supra; Henderson v. McPike, supra; Wells v. Zallee, supra.

Leonard Ulmann and Julius Peltzman for respondent.

COOLEY, C.

Appeal by plaintiff from an order of the Circuit Court of Jackson County sustaining defendant's motion for new trial. With slight modification we adopt appellant's statement of the facts, without using quotation marks, as follows:

This is a suit in sixteen counts by Home Trust Company, appellant (hereinafter called plaintiff), a Kansas City banking house, against Reuben Josephson, respondent (hereinafter called defendant), on his indorsements of sixteen promissory notes for $1000 each (on which a credit was indorsed) and interest. Originally there were three additional defendants sued as trustees of the dissolved corporate maker of the notes, Fredric Hotel Building Company, but the suit was dismissed as to one of them and as to the others the jury, obeying a peremptory instruction, returned a verdict in their favor. Consequently the case stands here as a suit by the holder of the notes solely against the indorser thereof.

At the trial the court gave a peremptory instruction in favor of plaintiff on each count and, upon the verdicts returned accordingly, entered judgment for plaintiff. Thereafter the court sustained defendant's motion for a new trial, and this appeal presents the question of whether there was any justifiable ground therefor.

The petition, filed March 7, 1931, alleged as to each count that Fredric Hotel Building Corporation on May 8, 1929, executed and delivered to defendant, Reuben Josephson, sixteen notes for $1000 each, bearing six per cent interest from date, represented by attached interest coupons; that default was made in the interest due thereon on November 1, 1930, and thereupon under a provision contained in each note authorizing it to do so without notice, the holder thereof declared the principal of all same to be due and payable; that each note bore eight per cent interest after maturity; that $640 was credited on each note on December 31, 1930, leaving a principal balance due on each note of $408.38.

It was further alleged that defendant, Reuben Josephson, the payee in said notes, was the president, manager, director and principal stockholder of the maker, Fredric Hotel Building Company, and controlled same; that for value, before maturity, he indorsed each of said notes and delivered same to plaintiff, who thereupon became a holder in due course of same. It is further alleged that Fredric Hotel Building...