Bank of Missouri v. Haden

• Decision Date: 31 January 1865
• Citation: Bank of Missouri v. Haden, 35 Mo. 358 (Mo. 1865)
• Parties: THE BANK OF THE STATE OF MISSOURI, Defendant in Error, v. CHARLES A. HADEN, Plaintiff in Error.
• Court: Missouri Supreme Court

35 Mo. 358

THE BANK OF THE STATE OF MISSOURI, Defendant in Error,

v.CHARLES A. HADEN, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1865.

Error to Greene Circuit Court.

T. A. Sherwood, for plaintiff in error.

The petition is certainly bad, even under our remarkable loose system of practice, and the court should have so holden it. The point raised by the demurrer was solely a question of pleading. The alleged contemporaneous parol agreement, even if admissible at all, could only have been properly urged on the trial, and has nothing to do with the sufficiency of the petition; an issue of law, is not of fact. (Jaccard v. Anderson, 32 Mo. 188, and cases there cited.)

This contemporaneous parol agreement is used as an excuse for failure to use the means necessary to fix the endorser, and as a means of converting his conditional liability into an absolute engagement. (Smith's Mer. L. 347; 1 Greenl. Ev., §§ 275, 277, 281; 2 Kent, 673; Pingry v. Watkins, 17 Verm. 379; Bank United States v. Dunn, 6 Pet. 51; Noble v. Bosworth, 19 Pick. 314; 5 Mo. 101; 1 Phil. Ev. 480; Smith's Adm'rs v. Thomas, 29 Mo. 307, and cases there cited; Richards v. Killam, 10 Mass. 239; 1 Mass. 69-91; 6 Mass. 336; 7 Mass. 496; 8 Mass. 83; Inge v. Hance, 29 Mo. 399.)

The objection was well taken, that the petition showed upon its face that the liability of defendants was discharged. The other objections that the petition was founded, not on the note, but on the incongruous parol agreement, and that the petition was insufficient, and set up no cause of action, were also well taken. In proof of this, strike out of the petition the allegations respecting the alleged agreement, and what have you? A mere naked averment that a negotiable, promissory note was made by the other defendants, and endorsed by Haden because the note was too crowded to admit his signature on its face, and that the note is unpaid; no cause of action, certainly, against the endorser. A pleader might with equal propriety aver, that an endorser became a maker because the back of the note was so crowded that he could not endorse it, and then agreed orally with the payee that he should be regarded only as evidence, and have all the rights and immunities that pertain to the contract of endorsement.E. B. Ewing, for defendant in error.

I. The defendant Haden is liable prima facie as a maker. (Lewis & Brother v. Harvey, 18 Mo. 74; Schneider v. Scheffman, 20 Mo. 571; Powell v. Thomas, 7 Id. 442.)

II. It may always be shown by parol, what was the precise nature of the contract assumed by making such endorsements as Haden made. (Cases above cited, and Barnes v. Lane, 5 Vt. 161; 6 Id. 642; 9 Id. 345; Sto. Prom. Notes, § 479.)

III. Even if Haden is not a maker, but an endorser, it may be shown by parol, that he waived demand and notice of nonpayment. (Dunkwater v. Tibbetts, 17 Maine, 16; Boyd v. Cleveland, 4 Peck. 525; Fuller v. McDonald, 8 Greenl. Maine, 213; 5 Pick. 437; Lane v. Stewart, 20 Maine, 98; 25 Id. 409; Sto. Prom. Notes, § 291.)

BATES, Judge, delivered the opinion of the court.

The amended petition in this case is as follows: “Plaintiff amends petition and states that the defendants William Hendricks, George W. Hancock, with one Sterling Gilmore (now deceased, and of whose estate said Elisha Headlee has been duly appointed and qualified as administrator, and in that capacity sued and judgment asked against him in said capacity), by their negotiable, promissory note herewith filed, dated August the 1st, 1861, promised to pay to the order of the said William Hendricks, four months after the date thereof, the sum of two thousand dollars, for value received, negotiable and payable at the Branch of the Bank of the State of Missouri at Springfield, without defalcation or discount; that the said William Hendricks negotiated for a valuable and full consideration the said note by endorsement and delivered the same to Charles A. Haden (defendant), who endorsed and delivered the same to plaintiff, who is now the legal owner and holder of the same; that said note was executed and made and endorsed and delivered as aforesaid to plaintiff, in consideration of the joint and several debt of the said William Hendricks, Sterling Gilmore (now deceased), John W. Hancock and Charles Haden, owing and being indebted unto the said plaintiff by virtue of a bill of exchange herewith filed, dated April 4th, 1861. The said last mentioned parties William Hendricks and Charles A. Haden acknowledging jointly and severally the said indebtedness to the said plaintiff in the said amount of two thousand dollars, for which the said note sued on was executed and delivered; that said note was made, executed, endorsed and delivered...