Barber v. Stroub

• Decision Date: 06 March 1905
• Citation: 85 S.W. 915,111 Mo. App. 57
• Parties: BARBER v. STROUB et al.
• Court: Missouri Court of Appeals

85 S.W. 915

111 Mo. App. 57

BARBER v. STROUB et al.

Kansas City Court of Appeals. Missouri.

March 6, 1905.

MORTGAGES — NOTE — FORECLOSURE — REAL PARTY IN INTEREST — TRUSTS.

1. Where, in a suit on a note by the indorsee, a witness testified he had no interest in the note, he would be estopped from thereafter asserting

any right in conflict with his testimony.

2. The holder of a note by indorsement and delivery may sue thereon irrespective of the interest of a third person in the note.

3. When a note is purchased by a firm, but indorsed and delivered to one member, who sues thereon, the proceeds are held by him in trust for the firm.

4. The right to maintain an action on a mortgage note carries with it the right to foreclose.

Appeal from Circuit Court, Jackson County; S. C. Douglass, Judge.

Action by C. H. Barber against Dennis J. Stroub and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Geo. H. English, Jr., and B. R. Estill, for appellants. Webster & Gilmer, for respondent.

JOHNSON, J.

October 15, 1901, defendants executed and delivered to Charles B. Ward, for a valuable consideration, their negotiable promissory note for $400, due six months after date. At the same time, for the purpose of securing the payment of said note, they executed and delivered to said Ward their mortgage deed conveying certain real estate situated in Kansas City. In June, 1902, Ward, for a valuable consideration, indorsed the note, and delivered it to the plaintiff, who paid the purchase price thereof by check signed by the partnership firm of Barber & Barber, of which firm plaintiff was a member, the partnership being composed of plaintiff and his brother, M. W. Barber. Afterwards plaintiff, who retained possession of the note and mortgage, brought this suit to recover judgment upon the note and for a foreclosure of the mortgage lien. Among other defenses now abandoned, the defendants in their answer pleaded that the plaintiff was not the real party in interest, which fact was put in issue by an appropriate reply. The judgment was for plaintiff.

It appears from the findings of fact made by the court which are supported by the evidence that plaintiff personally conducted the transaction involving the purchase of the note with the payee, Ward, received and retained possession thereof, paid the purchase price out of the partnership funds with the consent of his partner, and brought this action in his own name with the knowledge and consent of his partner. M. W. Barber testified to these facts, and further stated that the sole ownership of the note was in the plaintiff, but did not appear to know just how the firm was reimbursed for its outlay. The evidence was sufficient to have justified the learned trial judge in finding as a fact that the sole...