Babel v. Ransdell

• Decision Date: 03 May 1927
• Docket Number: No. 19720.,19720.
• Citation: Babel v. Ransdell, 294 S.W. 734 (Mo. App. 1927)
• Parties: BABEL v. RANSDELL et al.
• Court: Missouri Court of Appeals

294 S.W. 734

BABEL v.RANSDELL et al.

No. 19720.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

"Not to be officially published."

Action by Watson Babel against Mrs. W. L. Ransdell and another, in which plaintiff voluntarily dismissed as to defendantE. M. Raines.Judgment for plaintiff, and defendantMrs. W. L. Ransdell appeals.Affirmed.

Chas. H. Richeson, of Potosi, for appellant.

Edgar & Banta, of Ironton, for respondent.

BENNICK, C.

This action for the balance due on a certain promissory note, payable on demand, was instituted by plaintiff, the payee therein, against defendants, alleged to have been the makers of the same.Plaintiff voluntarily dismissed as to defendant Raines.Thereafter the case was tried by the court without the aid of a jury; the finding and judgment being for plaintiff, and against defendant Ransdell, for the total sum of $265.34, from which judgment the latter has appealed.

The petition was in conventional form.The answer of appellant admitted the execution of the note, and for defenses set up: First, that there was no consideration for her signature to the note, for the reason that she had signed the same after the execution thereof, and after the consideration therefor had passed between the original parties; and, second, that defendant Raines had made an assignment for the benefit of creditors, that plaintiff had presented the said note before the assignee, and had had the amount thereof allowed as a claim against Raines' estate, and that plaintiff was concluded by such judgment and decision of the assignee.

For reply, plaintiff alleged that, after the execution of the note by defendant Raines to plaintiff, and after payment by plaintiff to Raines of the sum of $300 evidenced by said note, plaintiff had made demand on Raines for the payment thereof, that said demand had been made in accordance with the terms of the note, the same being payable on demand, and that thereafter appellant signed said note in consideration of the granting by plaintiff of an extension of time to defendant Raines for the payment of said note.

For further reply plaintiff admitted that he had presented his claim against Raines to the assignee, that said claim had been duly allowed in the sum of $66.77, and that said amount had been credited on the note.

The evidence disclosed that originally appellant was not a party to the note, and had not been present either when it was executed by Raines, who was her nephew, or when the consideration passed to him.Some three weeks later, plaintiff told appellant that the note had not been paid, and that Raines had advised him that she would also sign the same.Plaintiff also informed her that he would be compelled to place the note in the hands of an attorney for collection.Subsequently, in a conference between all the parties, Raines took the note from plaintiff and handed it to appellant, who thereupon placed her signature upon it and returned it to Raines, who in turn redelivered it to plaintiff.Appellant admitted on cross-examination that she signed the note with the intention of paying it, and for the purpose of obtaining time in which Raines might care for his obligation, and Raines himself testified that he had obtained appellant's consent to sign the note as a means of securing such additional time.

It also appeared that Raines had made an assignment for the benefit of his creditors, and that appellant had desired that the note be filed by plaintiff with the assignee as a claim against the estate, so that whatever amount might be allowed could be credited upon the sum due on the note.

Inasmuch as this action was submitted to the trial court, sitting as a jury, without any declarations of law having been asked or given, the judgment must be affirmed, if it may be sustained upon any theory of the case supported by substantial evidence.Zeitinger v. Hargadine-McKirtrick Dry Goods Co., 298 Mo. 461, 250 S. W. 913;Falvey v. Hicks(Mo. Sup.)286 S. W. 385;Hunter v. Weil(Mo. Sup.)222 S. W. 472;Biggs v. Oerly(Mo. Sup.)257 S. W. 104;Railsback v. Bowers(Mo. Sup.)257 S. W. 119.

It is well established that one who signs a promissory note, as appellant did, after it has been executed, and after the consideration has passed between the original parties thereto, incurs no liability on the note, unless there is a new consideration.McMahan v. Geiger, 73 Mo. 145, 39 Am. Rep. 489;County of Montgomery v. Auchley, 92 Mo. 126, 4 S. W. 425;Williams v. Williams, 67 Mo. 661;Eitel v. Farr, 178 Mo. App. 367, 165 S. W. 1191;8 C. J. 211, 213.

Respecting the question of whether there was a new consideration for appellant's...