Beard v. Citizens' Bank of Memphis

• Citation: 37 S.W.2d 678
• Decision Date: 06 April 1931
• Docket Number: No. 17130.,17130.
• Parties: BEARD v. CITIZENS' BANK OF MEMPHIS.
• Court: Missouri Court of Appeals

37 S.W.2d 678

BEARD v. CITIZENS' BANK OF MEMPHIS.

No. 17130.

Kansas City Court of Appeals. Missouri.

April 6, 1931.

Error to Circuit Court, Adair County; Paul D. Higbee, Judge.

"Not to be officially published."

Suit by Anna M. Beard against the Citizens' Bank of Memphis. Judgment for defendant, and plaintiff brings error.

Affirmed.

Watson, Gage, Ess, Groner & Barnett, of Kansas City, for plaintiff in error.

Mills & Jayne and John M. Campbell, all of Kirksville, for defendant in error.

BLAND, J.

This is a suit in equity to compel the defendant to endorse, unqualifiedly, a promissory note sold by it to the plaintiff on August 3rd, 1910. There was a judgment for the defendant and plaintiff brings this case here by writ of error.

The note in question is in the sum of $1,530.00. It was made payable to the order of the defendant, is dated June 7th, 1910, and fell due on the first day of March, 1911. It bears 8% interest per annum and is signed by Wilson Brothers and George W. Wilson as makers. At the time of the purchase of the note plaintiff carried a deposit in the bank of defendant. The purchase of the note was made by the plaintiff through her husband as her agent. He was dead at the time of the trial and there is no testimony in the record tending to show what occurred between him and the defendant. However, on August 3rd, 1910, defendant charged plaintiff's bank account with the sum of $1,536.80. This sum evidently was intended to include the amount of the note in suit and accrued interest. Defendant at no time delivered the note to plaintiff or her husband but retained the same without endorsing it or assigning it in any manner. The inference to be drawn from the testimony is that the note was left at the bank for the purpose of collecting the interest.

Plaintiff testified that she did not see the note until the year of 1925; that at that time she called at the place of business of the defendant because the interest had not been paid "for two or three years, * * * and just partially two years before that," and she became uneasy; that she talked to the president of the bank, telling him that her husband "had been hearing that the Wilsons' financial affairs was in bad shape and he was uneasy about it and asked me to come to the bank and see what shape my note was in"; that she asked the president concerning the note and "he talked like it was all right. He didn't say exactly it was but he talked like it was"; that finally he said, "We will look after it" and plaintiff "left the note." During the conversation the president procured the note and looked at it but plaintiff did not see it "only as it was in his (the president's) hands." Plaintiff at no time was acquainted with the makers of the note.

This suit was instituted returnable to the November, 1929, term of the circuit court. The amended answer consists of a general denial and pleads the statute of limitations. It admits the sale of the note to the plaintiff alleging, however, that the sale was made on August 15th, 1910. It alleges that the note was placed in the hands of the defendant for collection; that thereafter it collected from the makers of the note certain sums representing interest therein described; that all of said sums were placed to plaintiff's account and that they have since been withdrawn by her; that plaintiff at no time demanded that defendant deliver the note to her since the same was left with defendant for collection and that plaintiff had never demander or requested that defendant endorse the note to her. The answer then states:

"That defendant now tenders and files herewith said note and asks that the court order and adjudge that plaintiff is the owner thereof; that the same be delivered to her and for such other and further orders as may be proper."

The original answer pleaded that "defendant has endorsed said note to plaintiff, without recourse, and now tenders and files herewith the same and asks that the court order and adjudge that plaintiff is the owner thereof; that the same be delivered to her and for such other and further orders as may be proper." (The amendment consists of the omission of the words in italics.) When plaintiff introduced the note in evidence it disclosed that it had not been endorsed by the defendant and the court, over the objection of plaintiff, permitted defendant to amend its answer omitting the allegation that the note had been endorsed without recourse in order that the pleading might correspond with the proof. It appears from the testimony that defendant's attorneys, after the suit was filed, concluded that the proper thing to do was to endorse the note without recourse and tender it to plaintiff and one of the attorneys prepared the original answer on the assumption that an officer of the bank had endorsed the note, but he was in error in this assumption.

Plaintiff insists that, by reason of the provisions of the Negotiable Instrument Law (Rev. St. 1929, § 2629 et seq.), where one sells a negotiable instrument for full value before maturity that, in the absence of a specific agreement to the contrary, it is presumed to be the agreement of the parties that the seller unqualifiedly endorse the instrument and that the burden is upon the seller to prove an agreement to the contrary; that under the admitted facts in this case plaintiff is entitled to have defendant make an unqualified endorsement of the note in controversy. Defendant does not construe the Negotiable Instrument Law as does plaintiff and denies any right to the plaintiff under the facts in this case, to have the note in question endorsed to her by an unqualified endorsement. We need not go into this controversy between the parties because we think that the defendant's contention that the action is barred by the statute of limitations must be sustained.

Plaintiff urgently insists that the statute did not begin to run until after a refusal on the part of the defendant to endorse the note. No authority is cited to support this contention. There is no question but that the statute began to run at the time the note was purchased. Plaintiff's right, if any, to an...