Butler v. Gambs

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: GANTT
• Citation: 1 Mo.App. 466
• Decision Date: 21 March 1876
• Parties: JOHN O. BUTLER, Respondent, v. HENRY GAMBS, Administrator of S. W. TOOMER, Appellant.

1 Mo.App. 466

JOHN O. BUTLER, Respondent,
v.
HENRY GAMBS, Administrator of S. W. TOOMER, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 21, 1876.

1. One who, at the request of the payee and holder of a note, adds his name to those of the original makers in order to induce another to purchase it, is liable to the purchaser in the same manner as if he had been an original maker thereof.

2. Mere discontinuance of an advertisement for the sale of real estate under a deed of trust to secure a note is not such a giving of time to the principal debtor as will discharge other makers of the note.

APPEAL from St. Louis Circuit Court.

Affirmed.

Ellis & Sullivan, for appellant, cited: Rickey v. Dameron, 48 Mo. 61; Kuntz v. Temple, 48 Mo. 71; Chitty on Bills, 227; Story on Prom. Notes, secs. 121, 133, 467, n 3, 474, n 2; Herring v. Woodhull, 29 Ill. 92; Schmidt v.

[1 Mo.App. 467]

Schmaelter, 45 Mo. 502; Vane v. Richardson, 36 Mo. 130; Cook v. Renick, 19 Ill. 598; Ivory v. Bank of Missouri, 36 Mo. 475; Turk v. Stahl, 53 Mo. 437; Deitz v. Corwin, 35 Mo. 376; Merchants' Bank v. Easley, 44 Mo. 186; Stagg v. Linnerfelser, 59 Mo. 336; Tenny v. Prince, 4 Pick. (Mass.) 385; Champion et al. v. Griffith, 13 Ohio, 228; Robinson v. Abell et al., 17 Ohio, 36; Seymour v. Mackey, 15 Ohio St. 515; Union Bank v. Willis, 8 Metc. (Mass.) 504; Powell et al. v. Thomas, 7 Mo. 441; Albridge v. Turner, 1 Gill & J. (Md.) 427; Story on Prom. Notes, secs. 458, 460; Rucker et al. v. Robinson et al., 38 Mo. 154; McCune v. Belt, 38 Mo. 282; Doyle v. Doyle, 97 Mass. 208; Newsam v. Finch, 25 Barb. 175; German Savings Bank v. Helmrick et al., 57 Mo. 100; Hosea v. Rowley, 57 Mo. 357; Hotchkiss v. Mosher, 48 N. Y. 478; Hanney v. Pell, 3 E. D. Smith (N. Y.), 432; Edw. on Ref. 152; Lewis v. Harvey, 18 Mo. 74; Baker v. Black, 30 Mo. 225; Beidman v. Gray, 35 Mo. 282; Deitz v. Corwin, 35 Mo. 376; Buckner v. Liebig et al., 38 Mo. 188; Bunce v. Beck, 43 Mo. 266; Western Benevolent Assn. v. Wolff, 45 Mo. 104; Napper v. Blank, 54 Mo. 131; Moies v. Bird, 11 Mass. 436; Otto v. Bent, 48 Mo. 23.

Slayback & Haeussler, for respondent, cited: Henery v. Marsberry, 57 Mo. 399; Miller v. Mellier, 59 Mo. 388; Weller v. Ranson, 34 Mo. 362; Ferguson v. Turner, 7 Mo. 497; Globe Ins. Co. v. Carson, 31 Mo. 218; Headlee v. Jones, 43 Mo. 235; Nichols v. Douglas, 8 Mo. 49; Ford v. Beard, 31 Mo. 459; Driskell v. Matur, 31 Mo. 325; Hawkins v. Redenham, 13 Mo. 125; Hose v. Rowley, 57 Mo. 357.

GANTT, P. J., delivered the opinion of the court.

Butler presented for allowance in the St. Louis Probate Court, against the administrator of Toomer, a note of the following tenor:

“$2,000. Six months after date, for value received, we, or either of us, promise to pay to the order of Lewis Hite

[1 Mo.App. 468]

$2,000, with interest at the rate of 10 per cent. per annum from date until paid.

[Exhibit A. James Hyatt, N. P.]	B. RUFFNER.
J. L. RUFFNER.
F. RUFFNER.
S. W. TOOMER.

(Indorsed as well as signed)--LEWIS HITE.”

“February 22, 1867.”

On the back of which appears the following credit (it is described in the bill of exceptions under the abbreviation “clk”): “Received, August 24, 1867, on the within, thirteen hundred dollars.

J. O. BUTLER.”

The claim was disallowed by the Probate Court. An appeal was taken to the Circuit Court, and the case was referred to Judge Reber, as referee. He filed a report, and on January 22, 1875, it was confirmed by the Circuit Court, giving judgment against the estate of Toomer, in favor of Butler, for the sum of $1,513.25, and 10 per cent. interest, The usual motions were made to set this judgment aside, and this appeal is prosecuted to reverse it.

It appears, by the bill of exceptions, that this note was secured by a deed of trust when originally made. It was originally executed by the three Ruffners only. Three months after its date Hite wished to sell it, and offered it to Butler, who declined to buy unless “the security of other names” were given; whereupon, this fact being explained by Hite to Toomer, he signed the note, which had already been indorsed by Hite, and also signed by him on its face, and the note and deed of trust were then delivered to Butler, who paid value therefor to Hite. Toomer received nothing for...