Bank of Neelyville v. Lee

• Decision Date: 15 February 1916
• Docket Number: No. 1505.,1505.
• Citation: 182 S.W. 1016,193 Mo. App. 537
• Parties: BANK OF NEELYVILLE v. LEE et al.
• Court: Missouri Court of Appeals

182 S.W. 1016

193 Mo. App. 537

BANK OF NEELYVILLE v. LEE et al.

No. 1505.

Springfield Court of Appeals. Missouri.

February 15, 1916.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by the Bank of Neelyville, a corporation, against Albert Lee, S. E. Fisher, and another. From a judgment against the last-named defendants, they appeal. Reversed and remanded.

Abington & Phillips, of Poplar Bluff, for appellants. David W. Hill, of Poplar Bluff, for respondent.

ROBERTSON, P. J.

A companion case to this was here, and the opinion therein is reported in 182 Mo. App. 185, 168 S. W. 796. What we there suggested (182 Mo. App. 192, 168 S. W. 796) might have been involved, but was not, and that which we expressly stated we did not decide evidently led to a belief in behalf of plaintiff that, if that question were involved, it should be decided in its favor. We referred in that opinion to the question as to whether, if a note signed by more than one as maker, yet, as a matter of fact, some or one of the parties signed as surety, under the Negotiable Instruments Law (sections 10089 and 10161, R. S. 1909), this latter fact constitutes a defense. Since then we have had that question before us (Long v. Shafer, 185 Mo. App. 641, 171 S. W. 690), which, by a divided court, was decided adversely to the contention now made by the plaintiff in the case at bar.

As we learn the facts in the case now before us, we will see that there is little difference between it and the companion case, except now we must decide if the trial shall proceed according to the principles of law or be governed by the procedure applicable to courts of equity. This action is on a note for the principal sum of $400, dated December 16, 1910, payable to the order of plaintiff 90 days after its date, and signed by all of the defendants. The defendants other than Lee filed an answer, after which plaintiff filed a motion for judgment because of the alleged reason that it did not state facts sufficient to constitute any defense to the note. The motion was sustained, and judgment entered against these appealing defendants. Lee is not mentioned in the judgment.

The answer is as follows:

"Now come the above defendants S. E. Fisher and W. R. Buster, and for their answer to the petition filed herein say that they deny each and every allegation in said petition contained, except what is hereinafter specifically admitted, averred or denied.

"Defendants admit that on the day charged in plaintiff's petition they made and executed, as sureties for their codefendant, Albert Lee, and delivered to the plaintiff bank, the note filed with plaintiff's petition and marked Exhibit A.

"Defendants, further answering, state that they had good reason to believe, and did believe, that upon the maturity of said note, to wit, on March 16, 1911, that the same was paid off and discharged by the principal on said note, Albert Lee. Defendants further state that, upon the contrary, said note was not paid on maturity, but was permitted by the plaintiff bank, its agents and officers, to be automatically renewed. Defendants further state that knowledge of the fact that said note still remained in the hands of the plaintiff bank, unpaid by its principal, Albert Lee, did not come to their possession until during the month of January, 1912; that immediately upon acquiring such information, and while the said Albert Lee was solvent, being seised and possessed of real and personal property aggregating in value many thousands of dollars above his exemptions and liabilities, defendants were proceeding to take such steps as might be necessary to protect themselves from loss as sureties of the said Albert Lee on said note as aforesaid, and communicated such intention to the officers, agents, and employés of the plaintiff bank, who thereupon informed these defendants that the plaintiff bank had in its possession securities sufficient to cover all of Albert Lee's indebtedness to the bank, including the note sued on herein, and stated, promised, and agreed that the bank would look to said securities, and not these defendants, for the payment of the note sued on herein in the event the same was not paid by said Albert Lee. Defendants state that, relying upon said statements, agreements, and promises of the plaintiff, through its officers, agents, and employés, and being deceived thereby, they refrained from proceeding to secure themselves from loss as sureties on said note of the said Albert Lee. Defendants further state that afterward the plaintiff bank, through its officers, agents, and employés, without the knowledge or consent of these defendants, carelessly, negligently, and wrongfully allowed and permitted the said Albert Lee to dispose of by sale and otherwise the subject-matter of whatever security it had to insure the payment of all of the indebtedness, including the note in suit of the said Albert Lee to the plaintiff bank.

"Defendants further state that shortly after the statements, promises, and agreements of the officers, agents, and employés of the plaintiff hereinabove referred to, and while defendants were relying upon the same, that the said Albert Lee, without the knowledge of defendants, became and still is hopelessly insolvent.

"Defendants further allege that but for the statements, agreements, and promises of the officers, agents, and employés of the...