American Union Trust Co. v. Never Break Range Co.
| Decision Date | 30 December 1916 |
| Parties | AMERICAN UNION TRUST COMPANY, Respondent, v. NEVER BREAK RANGE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted, November 14, 1916
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
AFFIRMED.
Judgment affirmed.
Connett & Currie and O'Hallaron & Lowenhaupt for appellant.
(1) The court erred in refusing defendant's request for a directed verdict. There was no evidence upon which the plaintiff was entitled to a judgment or, at least, the judgment should have been for the defendant. Secs. 10,001 10,002, R. S. 1909. (2) Instructions numbers 1, 2 and 6 given at the request of plaintiff, are erroneous. They do not state the law correctly and there is no basis for them in the facts of the case. Revised Statutes 1909, sections 10,001, 10,154; Bank v. Phillip, Admr., 172 Mo.App. 404; Miners v. St. Louis, 178 S.W. 211; Bank v. Hohn, 146 Mo.App. 704. (3) Instructions number three and five given at the request of plaintiff, are erroneous. Sec. 10,001, R. S. 1909; Miners v. St. Louis, 178 S.W. 211; Merchants v. Insurance Co., 110 Mo.App. 62; 7 Cyc, pp. 791, 926. (4) The court erred in refusing defendant's instructions numbered 3, 6 and 8. The defendant's given instructions do not cure the error in plaintiff's instructions. Wilks v. Railroad, 159 Mo.App. 727; Pyburn v. Kansas City, 166 Mo.App. 152; Goode v. Coal Company, 167 Mo.App. 175; Wojtylak v. Coal Co., 188 Mo. 283; Frederick v. Allgaier, 88 Mo. 603; State v. Railroad, 236 Mo. 382.
Elijah Robinson, Collins, Barker & Britton, C. E. Kimball, Jr., and C. K. Rowland for respondent.
(1) This court will not pass upon the sufficiency of the evidence; besides, appellant cannot raise his first point as to there being no evidence, without printing all the testimony. Rule 15, St. Louis Court of Appeals; Nash v. Brick Company, 109 Mo.App. 600; Furstenfeld v. Furstenfeld, 152 Mo.App. 734. The note is in legal effect bearer paper. Sec. 9980, R. S. 1909. (2) Appellant cannot raise the point of alleged insufficiency of evidence to support the instructions. See authorities under I. No adverse presumption arises from the use of the rubber-stamp endorsement. Horner v. Railroad, 70 Mo.App. 285; 4 Am. & Eng. Enc. of Law, 258. There is no error in the instruction as to what constitutes a holder in due course. Sec. 10022, R. S. 1909. Notice of infirmity must be actual; knowledge must amount to bad faith. Sec. 10026, R. S. 1909; Reeves v. Letts, 143 Mo.App. 199. (3) If the note was executed, respondent is presumed to be a holder in due course. Sec. 10029, R. S. 1909. The error, if any, is harmless. Schuepbach v. Gas Co., 232 Mo. 612. (4) The third instruction is based on the theory that the note was endorsed by the corporation through its agent. No adverse presumption arises from the use of the rubber-stamp indorsement. (supra, II.) There is no error in the fifth instruction. (5) Defendant's instructions numbered 3, 6 and 8 were properly refused.
Action upon a note executed by the Never Break Range Company, payable to its own order, the note dated May 1, 1911, due six months after date, with interest from date at the rate of six per cent. per annum. The name of the maker, Never Break Range Company, was imprinted in the body of the note with a stamp bearing that name and at the foot of the note and apparently with the same stamp is stamped the name, "Never Break Range Co.," and written below this with a pen, "W. L. Culver, Prest." With the same stamp, apparently, and on the back of the note, is stamped the name, "Never Break Range Co." No individual or official signature, however, follows this.
In the petition upon which the case was tried, it is averred that the defendant negotiated that note and that thereafter and prior to its maturity plaintiff had purchased it for a valuable consideration in the ordinary course of business and it was delivered to plaintiff and that at all times since plaintiff has been the owner and holder of the note in due course. Averring demand for payment of the principal and interest and refusal to pay, and setting up why a copy of the note is filed instead of the original, judgment is prayed for the amount of the note, interest and costs.
The answer of the defendant denies the execution of the note or that defendant ever assigned it by indorsement prior to maturity thereof or at any time; denies that plaintiff is the owner and holder of it or that it had purchased any note of the defendant for a valuable consideration; alleges that the note had not been indorsed by the defendant; that it was a nonnegotiable instrument; that defendant never received any consideration for it; that plaintiff now and at the time before the alleged or pretended purchase of the note, knew that the defendant had received no consideration therefor, and that the note was not negotiable and that it had not been indorsed by the defendant and knew that the note was improperly, unlawfully, fraudulently and surreptitiously obtained from defendant, and that no indorsement of the note was made by the defendant, all of which, it is averred plaintiff knew or had notice thereof.
Another defense was to the effect that the note had been replevied by defendant and was now in its possession, and that the action in replevin had not been tried and determined but was still pending, and defendant asked that all proceedings on this note be stayed until the determination of the action in replevin. As no attention seems to have been paid to this defense, it is unnecessary to notice it further. This answer was duly verified.
On a trial before the court and a jury, a verdict was rendered in favor of plaintiff for the amount of the note and accrued interest, and judgment following, defendant duly perfected its appeal.
Without dealing with the evidence in detail further than hereafter noticed, it is sufficient to say that it was directly contradictory on almost every material fact in the case. There is substantial evidence on behalf of plaintiff to the effect that the defendant company, desiring to raise money, made out three notes, of which that in suit was one, each for $ 5000, all signed and indorsed alike, and that a Mr. Churchman, acting for defendant, sent them by mail to one Sims, who was a note broker and representative of a bank in Memphis, Tennessee. As to whether they were delivered to Sims, as agent, to dispose of them, or as purchaser, is not clear; the evidence is both ways as to that. Sims handed two of them to a man named Bonds, in Kansas City, the president of the Night and Day Bank, to submit them to the board of directors of his bank there. Bonds took these two notes and disposed of one of them to the Night and Day Bank in Kansas City on or about May 3, 1911. Bonds turned over the proceeds of that note to Sims, but retained the other note. When Sims asked him to return it, he refused to do so, saying he would keep it for a few days and pay Sims for it, which he never did. In point of fact he negotiated it on his own account with the plaintiff trust company in Kansas City and kept the money, apparently; certainly never paid defendant or Sims any of it. Sims disposed of the third note to a Mr. Hendrey for $ 5000 in cash and bonds. According to the testimony for plaintiff, Mr. Richardson, the president of the respondent company at Kansas City, when Bonds, about May 2, 1911, presented this note for sale, called up the defendant company at St. Louis over the long distance telephone. The testimony of that president as to the conversation over the telephone with the representative of defendant will be set out later. As the result of that conversation the president of plaintiff company submitted the note to the finance committee of his company on May 3, 1911, the day after Bonds had left the note with him, and the finance committee, on the strength of the assurances which its president testified he had received from Mr. Culver and Mr. Churchman, bought the note, paying Bonds $ 5000 cash for it. Bonds disappeared and defendant, as stated, has never received anything for the note, except so far as it was included with the $ 10,000, and possibly some other securities that were turned over to it by Mr. Sims on account of the purchase, as he says, of the three notes calling for $ 15,000. That is practically the case.
There are five points relied upon for a reversal. Of these in their order:
First the refusal by the court of the defendant's request for a directed verdict, it being claimed that there was no evidence upon which plaintiff was entitled to judgment or "at least the judgment should have been for the defendant," citing sections 10,001 and 10,002, Revised Statutes 1909. These sections are in our Negotiable Instrument Law. Section 10,001 defines an instrument as negotiated when transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer, it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder, completed by delivery. Section 10,002 provides that the indorsement must be written on the instrument itself or upon a paper attached thereto, the signature of the indorser, without additional words, being sufficient indorsement. We are unable to appreciate the force of the argument of the learned counsel for appellant that these provisions of the statute demanded and, under the evidence in the case, authorized a directed verdict for the defendant. There is substantial evidence to the effect that the name of the defendant was stamped on the face of the note by an agent authorized to stamp it and that the signature...
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