Cannon v. Moore

• Decision Date: 23 March 1885
• Citation: 17 Mo.App. 92
• Parties: JAMES S. CANNON, Plaintiff in Error, v. MILTON MOORE, Adm'r, KNOX, deceased, Defendant in Error.
• Court: Kansas Court of Appeals

17 Mo.App. 92

JAMES S. CANNON, Plaintiff in Error, v. MILTON MOORE, Adm'r, KNOX, deceased, Defendant in Error.

Court of Appeals of Missouri, Kansas City.

March 23, 1885

Error to Jackson Circuit Court, HON, F. M. BLACK, Judge.

Affirmed.

Statement of the case by the court.

This is an action on a negotiable promissory note, executed by Thomas Knox, defendant's intestate, in October, 1879, to one C A. Wright, for the sum of $280, due thirty days after date. The note, the day after its execution, was transferred by indorsement to one John K. Landis, who instituted this suit. During pendency of suit, Landis assigned the action to James S. Cannon, in whose name the suit is continued.

The material facts, developed by pleadings and evidence, are substantially as follows: In September, 1879, two men named Hardy and Martin appeared at the home of Knox, who lived in the country and was a farmer, and, after staying over night with him, proposed to give him an agency to sell a patent " Champion Horse Hay Fork and Carrier." Knox was an old man, quite infirm, little able to read and write. He was prevailed upon by said parties to accept an agency and to sign what was represented by them to be a mere contract of agency, but which turned out to be two promissory notes for $250.00 each, due some time afterwards. The notes were non-negotiable and executed to said Wright. Hardy and Martin disappeared, and immediately afterwards said Wright pledged one of said notes to said Landis, a livery stable keeper in Kansas City, as collateral security to secure a livery bill of $40, claimed to have been contracted with him by said Wright. The evidence clearly enough established that Landis knew, or soon discovered, that the said note was given for what is generally known as such patent fork, etc transactions. He consulted an attorney about the matter and shortly afterward arrangement was made between Landis and Wright that they would go out to see old man Knox and try to have the matter fixed up in some more satisfactory way. Landis claims that the only interest he had in the matter was to collect the amount of his livery bill; that he was unwilling to intrust the note he held as collateral with Wright, and, therefore, agreed with Wright that if he would hire a team from him and pay him $5.00 for his time, he would accompany him to Knox's home, and would surrender the note on payment of the $40.00 and the ten dollars additional for the hire of the team and his day's time. Finding that he could not accompany Wright, on the day named, he got one Armstrong to go in his stead, to act in the matter for him.

The evidence tended to show that the parties found old man Knox about his barn, and that Wright proposed to compromise the notes, although they were not then due. Knox told him the notes were fraudulently obtained, and the manner of it. At first Knox refused to have anything more to do with the affair; but Wright represented to him that he would have the notes to pay, and there were incidents of the interview between them tending to show that the old man was much wrought upon, if not alarmed. The result was that Wright succeeded in obtaining from Knox $100.00 in money, and the note in suit. The money was divided between Wright and Armstrong on the premises of Knox, and they returned to Kansas City that night. The next morning Armstrong reported the trip and its incidents to Landis, informing him of Knox's statement to Wright about the fraud in procuring the first notes, etc. Knox, in connection with his brother-in-law, followed up next morning to hunt the parties who had originally swindled him to have them arrested, and obtained a warrant for that purpose. They reached the stable of Landis in Kansas City by noon of that day, and advised him of their mission, and made inquiry for the offenders. Landis claims that he had already, that morning, bought the last note from Wright, but did not advise Knox of the fact when so at his stable. On the trial of this case, the fact being disclosed that Knox, shortly after making the last note, had died of heart disease, the defendant offered his widow as a witness to testify to the following facts: " Sometime prior to the date of the note in suit, in September of the same year, first, as she remembers, and at the time said two notes herein mentioned were made, two men, strangers to her and whose names she is now unable to state, came to her husband's house and staid over night. They did not make known any business until the following morning. When she came in from milking, these men showed her a cut of said hay fork and an advertisement, which she now here identifies; told her how valuable it was and how much could be made by the agency a machine was to be put up on the Knox farm, and they were to advertise, and have all the neighbors come in--this apart from her husband; so said Knox signed some papers."

The court admitted this evidence against plaintiff's objection. The court further, over the objection of plaintiff, permitted said witness to make the further statement, that " after the making of the two first mentioned notes, said Armstrong and another man, whom the witness did not and does not know, came to the farm of her husband about the date of the note in suit; they met her husband, defendant's intestate, at the barn; Armstrong came to the house and requested dinner; after a while said other man and her husband came to the house also; when they came Knox was pale and excited, and did not seem at himself they all ate dinner and went into a room other than that in which they took dinner."

" Afterwards Armstrong and the other man went out by the pump, and she thought she saw them dividing some money. Knox followed after they left, and got back about 11 or 12 o'clock that night; next day he went and got my brother, Thomas Rice, and followed them again."

The court gave three instructions of its own motion, in words and figures following:

" No. 1. The note sued upon in this action is a negotiable promissory note, and the rights of the parties to this suit must be governed by the law relating to such paper, as hereafter it is stated to you to be."

" No. 2. It is admitted by the pleadings that said Knox signed the note sued upon, and it is also admitted that the note sued upon was given by said Knox in lieu of two other notes made by said Knox to Hardy, and that these were non-negotiable notes."

" No. 3. If you find from all the evidence that one Hardy falsely represented to Thomas Knox that the said two notes were contracts for an agency to sell the Champion Hay Fork and Carrier in certain portions of Jackson county, and were not obligations for the payment of money, and, without knowing what they really were, he was by such false representations induced to sign the same; that Wright became the holder of one of said notes, and the plaintiff became the holder of the other as collateral security for a debt of $40 or $50 due to him from said Hardy and Martin, or either of them, then said Knox was not bound to pay said notes, or either of them, to said Wright or to plaintiff, or to any one else; and if you find from any or all the evidence that said two non-negotiable notes were thus procured by Hardy by the false representations aforesaid, and you shall also further believe that said Wright procured the said Knox to make the note in suit in lieu of the said non-negotiable notes, and that he did so by falsely representing to Knox that he, said Knox, was liable on and would have to pay said two notes, and by these representations said Knox was induced to make the note sued upon, and that said Wright transferred the note to Landis, and that Landis, when he took the same from Wright, knew that said two non-negotiable notes had been procured by the false and fraudulent representations of said Hardy, as aforesaid, and also knew that the note sued upon had been procured by the false representations aforesaid of said Wright, then you should find for the defendant. The burden of proving these matters set forth in this instruction devolves upon the defendant."

Thereupon the plaintiff asked the court to instruct the jury as follows:

" If the jury shall believe from the evidence that defendant's intestate had, prior to the date of the note sued on in this case, made the two non-negotiable notes mentioned in defendant's answer; that said Wright, the payee in the note in suit, was the assignee of said two non-negotiable notes first mentioned; that there was a dispute between said Wright and defendant's intestate, Thomas Knox, as to the

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