Arthur v. Rosier

• Decision Date: 16 December 1924
• Citation: 266 S.W. 737,217 Mo.App. 382
• Parties: WELLMAN ARTHUR et al., Respondents, v. L. E. ROSIER et al., Appellants. *
• Court: Missouri Court of Appeals

266 S.W. 737

217 Mo.App. 382

WELLMAN ARTHUR et al., Respondents, v. L. E. ROSIER et al., Appellants. *

Court of Appeals of Missouri, Springfield

December 16, 1924

Appeal from the Circuit Court of Howell County.--Hon. E. P. Dorris Judge.

REVERSED (in part) and AFFIRMED (in part).

J. P Swaim, of Mountain View, for appellant.

(1) The court erred in overruling defendants' demurrer to plaintiffs' petition. The petition shall contain . . . a plain and concise statement of the facts constituting a cause of action . . . If the recovery of money be demanded, the amount thereof shall be stated, or such facts as will enable the defendant or the court to ascertain the amount demanded. Sec. 1220, R. S. 1919. The objection is never waived. Luck Construction Co. v. C. & A. Ry., 207 S.W. 840; Wilson v. Schaff, 207 S.W. 845; Johnson v Crowley et al., 207 S.W. 235. May be raised for the first time on appeal. LaCrosse Lbr. Co. v. Railway, 197 Mo.App. 546, 196 S.W. 1015. (2) The court erred in refusing a directed verdict for defendants. Atkins v. Brown, 208 S.W. 502. (3) The court erred in giving each and every instruction given at the request of plaintiffs. After the defect in the title to the instrument was shown, the burden was on plaintiff to show that he was a holder in due course. Long v. Shafer, 171 S.W. 690; Atkins v. Brown, 208 S.W. 502. "After the transferee receives notice of any infirmity in the instrument or defect in the title of the person nogotiating the same, before he has paid the full amount agreed to be paid therefor, he will be deemed a holder in due course, only to the extent of the amount theretofore paid by him." Sec. 840, R. S. 1919. (4) The court erred in refusing defendants' requested instructions, one, two, three and four. They correctly declared the law. Sec. 838, R. S. 1919; Also sec. 842, R. S. 1919; Schlamp v. Mannewall, 190 S.W. 658, 196 Mo.App. 114. (5) The court erred in overruling defendants' motion for a new trial.

J. H. Burroughs and B. L. Rinehart, both of West Plains, for respondents.

(1) The return of the note to defendants by Woods and its negotiation to Morris was a reissue of the note and the defendants became liable therefor, as original makers while Morris became an original payee, so that they are all deemed the original parties to the note. Section 836, R. S. 1919. Sater v. Hunt, 66 Mo.App. 527; Curry v. Lafon, 133 Mo.App. 180. (2) Morris being the first payee of the note makes Lasswell the first indorsee. He having received it in good faith for a valuable consideration and without knowledge of any infirmities passed the note to a subsequent indorsee with the same title he possessed and free from all equities between the original parties. First National Bank v. Stanley, 46 Mo.App. 440; Langford v. Varner, 65 Mo.App. 370; Hamilton v. Mays, 63 Mo. 167; Jennings v. Todd, 118 Mo. 296; Mayes v. Robinson, 93 Mo. 114. (3) Holder in due course holds the instrument free from any defect of title of prior parties and may enforce payment in full. Section 843, R. S. 1919. (4) A holder in due course who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter. Section 844, R. S. 1919. The judgment was for the right party and we respectfully insist that it should be affirmed.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

This is a suit on a promissory note. The cause was tried to a jury. Plaintiffs obtained judgment and defendants appealed.

May 15, 1918, defendants, L. E. Rosier and his wife Nina Rosier, gave their promissory note for $ 500 payable to one George Wood, and due two years after date. At that time defendant L. E. Rosier owned a house and lot at Siloam Springs in Howell county, and was desirous of selling said property to one Wilson of St. Joseph, Mo. For some reason Wilson did not want to give his note and a trust deed on the property, so defendants gave the note sued on to Wood the payee named therein, and Wood assigned the note, without recourse on him, back to defendant L. E. Rosier. January 29, 1919, defendant L. E. Rosier assigned to J. W. Morris "without recourse on me." Morris assigned to one Lasswell without recourse, and the assignment to Lasswell by Morris was before maturity of the note. Plaintiffs Arthur and Potts owed defendant L. E. Rosier and Rosier was endeavoring to collect and sued Arthur. After that suit was filed Arthur obtained the note sued on, and filed the present cause, and later Potts claimed some interest in the note and was made a party plaintiff. The trust deed on the Siloam Springs property was foreclosed and brought the sum of $ 50, and after deducting $ 8.50 for expenses the balance of $ 41.50 was credited on the note. Also there was credited on the note the sum of $ 225--the amount as we understand that Potts owed L. E. Rosier.

Plaintiffs' theory is that after the note was endorsed back to L. E. Rosier, and he in turn endorsed it to Morris, that Morris occupied the position of an original payee, and that the position of Lasswell was that of the first endorsee, and that since Lasswell acquired the note for value and before maturity, and without notice of infirmities, the same title and status passed to plaintiffs who claim through Lasswell.

Defendant L. E. Rosier's defense is that when he passed the note to Morris he made the endorsement without recourse on him, and the further defense that Morris fully understood that there was to be no come back on the Rosiers or either of them, and that he, Morris, was taking the note with the understanding that there was nothing behind it except the Siloam Springs property; that Morris was desirous of obtaining the title to the Siloam Springs property, and gave as a consideration for the note an amount equal only to the value of said property which was much less than the amount of the note. Defendant L. E. Rosier set up the further defense that plaintiffs were not holders in due course. Defendant Nina Rosier's defense is the same as that of her husband except that she did not pass the note to Morris with the endorsement that there was to be no recourse on her.

This record presents somewhat of a tangled web, and we have gleaned the facts as stated from the record and from the respective statements of Counsel. The maker of a promissory note who is sui juris, may for a consideration and before maturity reissue after it has become his property, but he cannot enforce payment against any intervening party to whom he was personally liable. [...