Boatmens' Sav. Inst. v. Forbes

• Decision Date: 31 March 1873
• Citation: 52 Mo. 201
• Parties: BOATMENS' SAVINGS INSTITUTION, Respondent, v. ISAIAH FORBES, et al., Appellants.
• Court: Missouri Supreme Court

52 Mo. 201

BOATMENS' SAVINGS INSTITUTION, Respondent,

v.ISAIAH FORBES, et al., Appellants.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

John Wickham, for Appellants.

I. Where several parties, all apparently makers, sign the same note, parol evidence is admissible to show that one signs as principal and the others as sureties. (Parsons on Notes and Bills, 233, note a; Garrett, et al., vs. Ferguson's Administrator, 9 Mo., 128, 129; Scott vs. Bailey, 23 Mo., 147, 150; Smarr vs. Schnitter, 38 Mo., 481.)

II. The Court erred in refusing to permit appellant to strike out portions of his answer.

Lackland, Martin and Lackland, for Respondent.

The affidavit for a continuance states that defendant, Parker, expected the witness Downing to prove that the note sued on was executed and discounted for the benefit of the Philharmonic Society, and that defendant Parker signed the same for the accommodation of said Society; and was properly overruled, because the Philharmonic Society was not a party to the note.

ADAMS, Judge, delivered the opinion of the court.

This was an action on a promissory note for sixty-six hundred and seventy-eight dollars and fifty-seven cents.

The petition alleged that the plaintiff was a corporation duly created under the laws of this State, and that the defendant duly executed the note sued on to one William Downing, who negotiated and transferred the same to plaintiff. The petition states that on the 18th day of August, 1869, there was paid on the note three thousand dollars, and also a payment of one thousand dollars on the 23rd of September, 1869, and claimed judgment for the balance and interest.

Several of the defendants filed separate answers denying the existence of the plaintiff as a corporation, and denying the transfer of the note to plaintiff, and claiming other credits not allowed by the petition.

The defendant, George W. Parker, by an amended answer denied the existence of plaintiff as a corporation, and denied the transfer of the note to plaintiff, and also set up as a defense, that he was only surety upon the note, but did not state that any of the parties to the note were principals, nor for whom he was surety. He further alleged, that without his knowledge or consent the plaintiff made an agreement with the principal debtor and some of the co-sureties by which the time of payment of the note was extended for four months from the 26th of February, 1868, to the 29th of June, 1868, and afterwards made another extension in the same way from the 29th of June, 1868, to the 2d of July, 1869.

The replication denied that defendant, Parker, was only surety, and alleged that he signed the note as principal with the other defendants, and denied the plaintiff had any knowledge that he was surety, and admitted the alleged extensions, but charged that they were made with the knowledge and consent and at the request of Parker.

A verdict and judgment were given against the defendants for the balance of the note, from which the defendants appealed to the General Term, where the judgment at Special term was affirmed, and an appeal...