Broyles v. Morris

• Decision Date: 07 November 1922
• Docket Number: No. 16524.,16524.
• Citation: 245 S.W. 341
• Parties: BROYLES v. MORRIS et al.
• Court: Missouri Court of Appeals

245 S.W. 341

BROYLES v. MORRIS et al.

No. 16524.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by W. W. Broyles against Doug Morris and others. Judgment for plaintiff, and from an order sustaining the motion for new trial of defendants Wiley Huston and Stuart L. Penn, plaintiff appeals. Reversed and remanded, with directions to enter judgment on the verdict.

D. E. Killam, of Troy, and Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

Frank, Howell, Sutton & Huston, John L. Burns, and Creech & Penn, all of Troy, for respondents.

NIPPER, C.

This is an action on a promissory note, dated the 2d day of May, 1913, due six months after date, payable to the order of A. J. Broyles, and signed by Doug W. Morris, Wiley Huston, and Stuart L. Penn. Plaintiff recovered. Defendants Huston and Penn filed a motion for new trial, which was by the court sustained without giving any reasons therefor, and from the order sustaining motion for new trial plaintiff appeals.

The petition is in the usual form. The answer of defendants Huston and Penn admits that they signed the note, but denies all other allegations in the petition, and, by way of defense, pleads that none of the defendants delivered the note to A. J. Broyles, the payee named in the note; also that no consideration passed from Morris to A. J. Broyles, or from A. J. Broyles to any of the defendants; and, further answering, says that plaintiff became the holder of the note with full knowledge that the same had not been delivered to or accepted by A. J. Broyles.

A fair statement of the facts of this case is about as follows:

Morris asked Huston and Penn if they would sign the note in question for him, saying that he could get the money from A. J. Broyles. Huston and Penn signed the same, and delivered it to Morris. When Morris approached A. J. Broyles with the note, said Broyles informed him that he did not have the money at that time. Morris then returned to Troy, Mo., and informed the defendants Huston and Penn of this fact, and asked them to sign another note for him for $25, payable to the People's Bank, and stated he would get along with this $25.

Huston testified that Morris informed him he had destroyed the $50 note, and Penn stated that Morris told him he had left the $50 note at home, but would bring it in to town to him in a short time. Morris testified it was the understanding that the $25 note was executed for the purpose of giving him temporary relief until he was able to get the other $50, and that when he got the $50 he would take up the $25 note at the People's Bank. The $25 note was dated May 3, 1913. On July 23d Morris paid $20 on the $25 note. At the time the $25 note was executed, Morris still had in his possession the $50 note. Shortly after that time, Morris again solicited A. J. Broyles to furnish him the money on the $50 note, when said Broyles, for some reason, refused to give him the money. Morris then called upon W. W. Broyles, a relative of A. J. Broyles, and informed W. W. Broyles that he (Morris) had the $50 note, described it in detail, and informed. W. W. Broyles that A. J. Broyles did not have the money at that time to take up the note, and asked W. W. Broyles if ha would cash it. W. W. Broyles then wrote the cashier of a bank at Troy, inquiring as to the financial responsibility of the sureties, Huston and Penn. After receiving a satisfactory reply, W. W. Broyles informed Morris when he came to him the second time that he would cash the note for him if he would have A. J. Broyles indorse it, or "sign it to him." Morris went back to A. J. Broyles and informed him of the situation, and A. J. Broyles took the note, and wrote on the back thereof the following: "I sign the within note to W. W. Broyles. A. J. Broyles." Morris then took the note to W. W. Broyles, and received the money. This last transaction occurred about the 23d of July, 1913, or before the note became due.

There is no indication from the record in this case that W. W. Broyles had any knowledge that the $25 note was given, or of the conversation alleged to have taken place between Morris and the sureties about the cancellation of the $50 note when the $25 note was executed. It appears that A. J. Broyles and W. W. Broyles, although related to each other, were not on friendly terms, and...