B. J. Semms & Co. v. Barnett

• Decision Date: 16 December 1916
• Docket Number: No. 1852.,1852.
• Citation: 190 S.W. 394
• Court: Missouri Court of Appeals
• Parties: B. J. SEMMS & CO. v. BARNETT et al.

190 S.W. 394

B. J. SEMMS & CO. v. BARNETT et al.

No. 1852.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Error to Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by B. J. Semms & Co., against J. I. Barnett, W. H. Barnett, and J. H. Briggance. To review a judgment for plaintiff against J. I. Barnett, but for the other defendants, plaintiff brings error. Judgment affirmed.

Von Mayes, of Hayti, and J. S. Gossom, of Caruthersville, for plaintiff in error.

ROBERTSON, P. J.

This is an action on a promissory note executed by defendants in error and delivered to plaintiff in error. A jury trial was had, resulting in a verdict and judgment for plaintiff in error against J. I. Barnett and for the other defendants, W. H. Barnett and J. H. Briggance. The plaintiff brings the case here by writ of error.

Plaintiff in error held an unsatisfied judgment against defendant in error J. I. Barnett, and he and the other defendants gave the note in suit for the amount due on that judgment. Prior to the time when this note was executed and as the inducement therefor J. I. Barnett had the promise of plaintiff that if this note and one for $959.33 were executed by him and the other defendants in error and delivered to plaintiff, the plaintiff would sell and deliver to W. A. Barnett, a brother of J. I. Barnett, a stock of whisky. W. A. Barnett was a licensed dramshop keeper in Caruthersville. Upon these express conditions defendant in error, W. H. Barnett and Briggance, executed the note sued on and delivered it, together with the other one, to plaintiff, but the stock of whisky was not delivered. The large note was returned. Section 9987, R. S. 1909, reads, so far as necessary to now quote, as follows:

"Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument."

At the close of the testimony the plaintiff requested and was refused a directed verdict. Plaintiff also requested and was refused an instruction, telling the jury that if...