Aven v. Ellis
| Decision Date | 20 December 1933 |
| Citation | 66 S.W.2d 828,334 Mo. 449 |
| Parties | John Aven and Bert Ellis, Appellants, v. J. Fred Ellis |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.
Affirmed.
Jones Hocker, Sullivan & Gladney, Sid C. Roach and Ralph T. Finley for appellants.
(1) Fraud must be proved by clear and convincing evidence, and whenever a transaction is as consistent with honesty and good faith as with a fraudulent purpose, it will be referred to the better motive. Woosley v. Wells, 281 S.W. 700; Monsanto Chemical Works v. Am. Zinc Lead Co., 253 S.W. 1010. (2) Under the evidence, the failure of the defendant to promptly repudiate his agreement to endorse Rogers' note upon discovery of Rogers' financial condition, and his failure to return the $ 1000 consideration received by him, constitute a waiver of any fraud, and bar his defense of fraud in this case. 1 Daniel on Negotiable Instruments, sec. 193, p. 270; First Methodist Church v Berryman, 303 Mo. 492; Window Co. v. Cornice Co., 181 Mo.App. 325; Meinershagen v. Taylor, 169 Mo.App. 24; Long v. Machine Co., 158 Mo.App. 665. (3) Under the evidence, the defendant failed to make out a case of fraudulent representations, because the representations testified to were clearly representations of opinion or of value. Cornwall v. Real Estate Co., 150 Mo. 383; State ex rel. v. Allen, 312 Mo. 118. Furthermore, nothing is alleged to have been said or done by the plaintiffs to prevent investigation by defendant, and ample means were at hand to determine for himself the facts concerning such representations. Dunn v. White, 63 Mo. 186; Moody v. Baxter, 167 Mo.App. 524; State ex rel. Locke v. Trimble, 298 S.W. 788; Stevens v. Rainwater, 4 Mo.App. 297; Franklin v. Holle, 7 Mo.App. 245. The evidence wholly fails to show any right to rely upon the alleged statements. Bragg v. Packing Co., 205 Mo.App. 600, 226 S.W. 1014; State v. Zingher, 302 Mo. 656. (4) The evidence wholly fails to show that in December, 1919, at the time the defendant states that the plaintiffs stated that Rogers was worth $ 300,000, Rogers was not reasonably worth the said sum, or approximately that sum. Rogers, himself, testified that he was worth $ 200,000 to $ 250,000, and it is apparent that the sudden drop in real estate values was the cause of Rogers' trouble in 1920, and thereafter. Peters v. Lohman, 171 Mo.App. 488; Bank v. Wood, 189 Mo.App. 71. There is no evidence that if the representation in question was made, the plaintiffs did not believe it was true, or that it was not true. Sedgwick v. Natl. Bank, 295 Mo. 261; Peoples Natl. Bank v. Trust Co., 179 Mo. 663. (5) The evidence is wholly insufficient to show an extension of the note and the release of the defendant by the payment of interest in advance. Hosea v. Rowley, 57 Mo. 359; Coster v. Mesner, 58 Mo. 551; Elliott v. Qualls, 149 Mo.App. 488; St. Joseph, etc., Ins. Co. v. Hauck, 71 Mo. 468. (6) There was no release of the defendant by the taking of the collateral notes by the American Savings Bank. Lynes v. Mercantile Co., 268 S.W. 705; Citizens Bank v. Gaines, 278 S.W. 786; Leabo v. Goode, 67 Mo. 129; Meredith v. Pemberton, 170 Mo.App. 106; State Bank v. Hafferkamp, 315 Mo. 477; Night & Day Bank v. Rosenbaum, 191 Mo.App. 571; Mut. Life Ins. Co. v. McKinnis, 15 S.W.2d 937; Bates v. Rosekrans, 37 N.Y. 410; Keyser v. Hinkle, 127 Mo.App. 76; Second Natl. Bank v. Graham, 92 A. 199. The fact that two notes were taken, aggregating the amount of the original note, does not change the rule. Glass v. Heller, 287 S.W. 874; State Bank v. Hafferkamp, 315 Mo. 476. (7) The evidence fails to establish payment of the note sued on by the quitclaim deed from Rogers to the plaintiffs. If there was any such intention, it existed only in the mind of Rogers. Pryibil v. Altemeyer, 153 Mo.App. 240; Drake v. Critz, 83 Mo.App. 656; Blesse v. Blackburn, 31 Mo.App. 268; Jennings v. Hurd, 130 Mo.App. 495.
Stephen C. Rogers, Owen G. Jackson, Farrington & Curtis, Chas. M. Farrington and Paul W. Barrett for respondent.
(1) This case was tried by a jury and their finding as to the facts is conclusive if supported by any evidence. Natl. Bank of Commerce v. Laughlin, 305 Mo. 8, 264 S.W. 706; White v. Meiderhoff, 281 S.W. 98; State Bank of Sarcoxie v. Harp, 282 S.W. 737. All reasonable inferences from the testimony are to be considered in aid of the verdict. Heaton v. Dickson, 153 Mo.App. 312, 133 S.W. 159; American Natl. Bank v. Love, 62 Mo.App. 378. (2) The defendant is an indorser on the note in suit and his liability that of one secondarily liable. Secs. 2691, 2823, R. S. 1929; Canada v. Shuttee, 210 Mo.App. 614, 235 S.W. 824; Eaves v. Keeton, 196 Mo.App. 424, 193 S.W. 629; Bank v. Hanlon, 183 Mo.App. 243, 166 S.W. 830; Stephens v. Bowles, 202 Mo.App. 599, 206 S.W. 589; Faulkner v. Faulkner, 73 Mo. 327. The defendant's liability being secondary he was released when the holder of the note in question entered into an agreement with the maker extending the time of payment without the defendant's consent. Sec. 2748, R. S. 1929; Newkirk v. Hays, 220 Mo.App. 514, 275 S.W. 964; Bloss v. Gray, 37 S.W.2d 975; Fisher v. Stevens, 143 Mo. 181, 44 S.W. 769; Peoples Bank v. Smith, 263 S.W. 475; Security State Bank v. Gray, 25 S.W.2d 512. There was substantial evidence that Rogers, the maker of the note, paid interest in advance to the holder in consideration for the holder's agreement to extend the time of payment and the issue was properly submitted to the jury in defendant's instructions, numbers 4 and 6. St. Joseph Fire & Marine Ins. Co. v. Hauck, 71 Mo. 465; Stillwell v. Aaron, 69 Mo. 539; Baade v. Cramer, 278 Mo. 530, 213 S.W. 121; Owen v. Bray, 80 Mo.App. 526; Bloss v. Gray, 37 S.W.2d 975; Russell v. Brown, 21 Mo.App. 51; Elliott v. Qualls, 149 Mo.App. 482; Dickherber v. Turnbull, 31 S.W.2d 234; Main Street Bank v. Werner, 7 S.W.2d 723; Merchants Ins. Co. v. Hauck, 83 Mo. 21; Newkirk v. Hays, 220 Mo.App. 514, 275 S.W. 964; 59 A. L. R. 988, 51 L. R. A. (N. S.) 352. When the plaintiffs in this action took a quitclaim deed to property in Dallas County from the maker of the note in satisfaction of his liability they discharged the defendant on the note. This issue was properly submitted to the jury in defendant's instructions, numbers 5 and 6. Sec. 2748, R. S. 1929; Eggermann v. Henschen, 56 Mo. 123; Broadway Savings Bank v. Schumucker, 7 Mo.App. 171; Phenix Natl. Bank v. Hanlan, 183 Mo.App. 243, 166 S.W. 830; Meredith v. Pemberton, 170 Mo.App. 100, 156 S.W. 70; Priest v. Watson, 75 Mo. 310; Brown v. Croy, 74 Mo.App. 462; Citizens Bank v. Gaines, 278 S.W. 784. (3) In June, 1922, the maker of the note executed two new notes which were taken in payment of the original obligation, without the knowledge or consent of the defendant; which agreement, together with the payment on the new note discharged the note in suit by payment. Sec. 2747, R. S. 1929; State Bank of Wellston v. Hafferkamp, 315 Mo. 465, 287 S.W. 331; Lebao v. Goode, 67 Mo. 126; Appleton v. Kennon, 19 Mo. 637; Night & Day Bank v. Rosenbaum, 191 Mo.App. 559, 177 S.W. 693; Citizens Bank v. Gaines, 278 S.W. 784; Johnson v. Franklin Bank, 170 Mo. 171. Whether or not a renewal note operates as a discharge of the note of which it is a renewal is dependent on the intention of the parties. Walker v. Dunham, 135 Mo.App. 396, 115 S.W. 1086; 52 A. L. R. 1416. Whether or not the parties intended the renewal note as payment is a question of fact for the jury and not a question of law. Walker v. Dunham, 135 Mo.App. 396, 115 S.W. 1086; Powell v. Blow, 34 Mo. 485. (4) The defendant, Fred Ellis, was under no obligation to restore the $ 1000 received by him, and his retention of it does not estop him from pleading fraud in the procurement of his signature to the note. Pioneer Stock Powder Co. v. Goodman, 201 S.W. 576. (a) Under conflicting testimony it is for the jury to say whether or not the particular facts constitute fraud. Johnson County Sav. Bank v. Redfearn, 141 Mo.App. 386, 125 S.W. 224. The statements of the plaintiffs that they knew the financial condition of C. W. Rogers; that he was possessed of property worth over $ 300,000; that he owned two banks; that he owned property in Kansas with a monthly rental of over $ 700, and that Rogers was good without any security were false representations as to the financial ability and worth of a third person, and the jury's finding that such representations were made, that they were untrue and that the defendant acted on them to his detriment is based on substantial evidence. Hamlin v. Abdell, 120 Mo. 188, 25 S.W. 516; Anderson v. McPike, 86 Mo. 293; Felix Marston v. Shirley & Co., 60 Mo.App. 621; Cottrill v. Krum, 100 Mo. 397; City Bank of Columbus v. Phillips, 22 Mo. 85; 3 R. C. L., sec. 319, p. 1105.
Fitzsimmons, C. Cooley and Westhues, CC., concur.
This is an appeal from a judgment of the Circuit Court of St. Louis County in favor of defendant J. Fred Ellis in an action upon a promissory note of which defendant was indorser. The note was for the principal sum of $ 14,750. The note was dated at Springfield, Missouri, June 18, 1920. It was payable in 120 days from date. C. W. Rogers was the maker. The American Savings Bank of Springfield and defendant J. Fred Ellis were the payees. Defendant Ellis indorsed the note for the accommodation of the maker Rogers, before the latter delivered it to the bank and received payment of the named consideration. Plaintiffs as the legal holders and owners of the note by assignment of the American Savings Bank sued defendant indorser for the balance claimed to be due, namely $ 10,604.50.
The defendant, by answer, admitted that he signed and indorsed the note and its predecessor. He pleaded in discharge of his liability that...
To continue reading
Request your trial