Bunch v. Phillips

• Decision Date: 04 March 1935
• Docket Number: No. 5448.,5448.
• Citation: 79 S.W.2d 785
• Court: Missouri Court of Appeals
• Parties: BUNCH v. PHILLIPS.

79 S.W.2d 785

BUNCH v. PHILLIPS.

No. 5448.

Springfield Court of Appeals. Missouri.

March 4, 1935.

Appeal from Circuit Court, St. Clair County; W. L. P. Burney, Judge.

"Not to be published in State Reports."

Action by R. T. Bunch against U. V. Phillips. Judgment for defendant, and plaintiff appeals.

Affirmed.

Elmer Silvers, of Clinton, and John M. Belisle and Dewey P. Thatch, both of Osceola, for appellant.

Lee E. Crook, of Osceola, and V. E. Phillips, of Kansas City, for respondent.

SMITH, Judge.

This case has come to the writer on reassignment. It is a suit on a negotiable promissory note for the principal sum of $200 dated May 9, 1925, and due eight months after date, with interest from date at 8 per cent. per annum, and, if not paid annually, to be compounded, and provided for an attorney's fee of 10 per cent. if collected by an attorney. The note was signed by H. A. Bunch, U. V. Phillips, and Harry Foster. Suit was filed against U. V. Phillips on October 13, 1932. The petition is an ordinary petition for suit on a note, with the note attached, and prayed judgment for $200, the principal, $152.90 accrued interest, and for the further sum of $35.29 as attorney's fee.

On November 23, 1933, defendant filed the following verified amended answer, caption, and signature omitted:

"1. Comes now the above named Defendant and for answer to plaintiff's petition admits herein that he signed the note sued on and described in plaintiff's petition, but for further answer says that prior to and at the time of executing said note the plaintiff in said cause agreed and represented to defendant that the plaintiff had additional security on said loan which was a Deed of Trust on realty belonging to H. A. Bunch, the principal maker of said note; that defendant refused to sign said note until plaintiff promised and agreed to secure him with himself jointly in the Deed of Trust herein referred to; that the representations made to defendant by plaintiff were not carried out by plaintiff, but that instead of making defendant secure on the Deed of Trust, took same in his own name.

"2. Defendant further states that plaintiff falsely and fraudulently deceived him in inducing him to sign said note by the representations aforesaid, and knowing at the time that he would not protect defendant with a security in signing said note; that the defendant believed and relied upon representations made by plaintiff which induced him to sign said note.

"3. Defendant further states in his answer herein that by reason of the false and fraudulent representations and deception practiced by plaintiff in inducing him to sign said note that he has been damaged to the extent of the full amount of said note which is $____, and that by reason of the representations made and the deceptions practiced on defendant by plaintiff said signature having been obtained by and through fraud, defendant is entitled to recover and the defendant should be discharged with his cost.

"4. Defendant for further answer states that H. A. Bunch, the principal on said note, although a resident of St. Clair County, has not been sued and so far as defendant knows no demand for payment has been made from him, and the same allegation applies to Harry Foster; that he has not been sued or made a party to this suit and no effort is being made to recover of and from him.

"5. Defendant further states that if consideration passed between the parties hereto that H. A. Bunch and Harry Foster receive same as no consideration ever passed to this defendant.

"6. Further answering, defendant alleges that the document sued upon was never delivered to plaintiff by defendant, or anyone lawfully authorized to deliver same, with intent that such document should have force and effect as a promissory note.

"7. Further answering, defendant states that if said document was ever lawfully delivered to plaintiff (which defendant denies) that there is no consideration for said instrument.

"Wherefore, Defendant prays to be discharged with his costs."

On November 23, 1933, plaintiff filed a demurrer to defendant's answer, "for the reason that the facts stated in said answer do not constitute any defense to plaintiff's petition." This demurrer was overruled, and plaintiff filed motion to strike out each of the paragraphs numbered from 1 to 7 of defendant's answer. The court sustained the motion as to paragraphs Nos. 4 and 5, and overruled the motion as to the other paragraphs. The plaintiff filed a reply to the answer, and on the same day, November 23, 1933, trial was had to a jury, resulting in a verdict and judgment for the defendant.

Motion for new trial was filed and overruled, and the case is before us under several assignments of error, which we shall consider, with the evidence in connection therewith, in the order presented under points and authorities.

The first assignment is stated as follows: "Plea of want of consideration is without merit where consideration moved to co-signer." The plaintiff cites under this point the cases of First Nat. Bank of Hamilton v. Fulton (Mo. App.) 28 S.W.(2d) 368, and Hackett v. Dennison, 223 Mo. App. 1213, 19 S. W.(2d) 541. We find no complaint with the holdings in these cases, but we think they are not controlling under the facts in this case. A reference to the answer, above quoted, will show what the defenses are to the payment of the note. The note was introduced in evidence, and plaintiff rested.

The defendant was on the stand, and the abstract gives the following résumé of his testimony:

"He did come down about this note previously. R. T. Bunch come out and said if I didn't sign the note for them they couldn't borrow this money. I told him I had already a loan on all their personal stuff. I mean, the H. A. Bunch stuff, and that they would have to secure me on the real estate and he said that he was taking a loan on the real estate, that is R. T. Bunch said he was taking the loan on this farm for some money he was furnishing, to secure himself, and if I would sign the note it would make the deal go through with and they could straighten this up. I told him there was just one way I would sign the note — if he would put me on as a party with him, securing me as a party with him, making it Bunch and Phillips; that is, making the deed of trust which was to be executed on the land there, to both of us. R. T. Bunch agreed to it; said that would be done. I suppose he came to see me three or four times about the note and transaction, maybe more. The last time I saw him about it was the day the note was signed. I don't believe I ever did see the note after I signed it. After this understanding with R. T. Bunch, it wasn't but two or three days until the note was presented to me to be signed because he was anxious to get it fixed up. H. A. Bunch brought the note to me.

"Q. Let me ask you whether or not, at the time you signed this note for H. A. Bunch you were doing it with the expectancy and understanding that your said agreement with R. T. Bunch that the note was to be secured and you were to be a co-payee of the co-maker of the deed of trust — the deed of trust running to Bunch and you?"

"By the Court: Let him state the circumstances; state what he said about it.

"A. Well, it was — the deed of trust was to be made before it was delivered. I never heard anything about this note until several years later. A few days after this note was supposed to have been signed up down here in Osceola, Rufus (R. T. Bunch) came back and came over with Uncle Joe, his father. He said the boys didn't do exactly what they agreed to. Uncle Joe said that to me in R. T. Bunch's presence and he says they were kind of mixed up on the deed of trust or something like that; and so I kind of got hot and told him what I thought about it. R. T. Bunch said that Lee Crook refused to put it in as it complicated the matter; and I told him that it was something unusual for Lee not to take care of a proposition like that and he said that they would secure me — Rufus said that. I told him that was the agreement between him and me at first; he was to see that I was secured. Well, he said they got in kind of a family jamboree or something, and that Babe — Harry and Babe didn't try to secure me afterwards. Harry Foster is H. A. Bunch's brother-in-law. I told him he was to see; he said he would see I was made a party to that. Rufus agreed to that but he didn't do it. One thing, Lee told them it couldn't be done — that it would complicate matters; and it went on a little bit. We kind of jarred around about it and finally something was said...