Carter v. McClintock

• Decision Date: 31 January 1860
• Citation: 29 Mo. 464
• Parties: CARTER, Appellant, v. MCCLINTOCK, Respondent.
• Court: Missouri Supreme Court

29 Mo. 464

CARTER, Appellant,

v.MCCLINTOCK, Respondent.

Supreme Court of Missouri.

January Term, 1860.

1. Delivery is necessary to complete the execution of a promissory note; if the payee obtain possession thereof by fraud he can not maintain an action thereon.

Appeal from Buchanan Circuit Court.

This was an action on a promissory note for $663.33. The defendant in his answer admitted the “execution” of the note set out in the petition, but set up by way of defence that the same was proved by falsehood and fraud. He states that in June, 1857, he entered into a “conditional contract” with the plaintiff, by which defendant and one Murray were to become the purchasers of a certain piece of ground at the price of $3,000, $1,000 to be paid down, the remainder in three equal instalments of six, twelve and eighteen months; that it was expressly understood that the contract was to take effect and become binding only in case Murray would become a party with defendant in the contract and become jointly bound by the purchase money, but in case Murray should refuse to take half the land and become jointly bound for the purchase money the contract was to be considered null and void; that with this understanding defendant deposited $1,000 with plaintiff, and at the same time three promissory notes were drawn up for the signatures of defendant and Murray, also a bond conditioned for the conveyance of said land to said Murray and defendant; that defendant then signed the notes, and they, with the bond, were placed in defendant's hands in order that he might submit them to Murray; that he did submit the notes and bond to Murray for approval or rejection; that Murray refused to ratify or approve said contract, or become a party thereto, or sign said notes; that shortly after defendant notified plaintiff of this decision and demanded the return of the $1,000; that defendant retained said notes in his possession until some time in November, 1857; that in a conversation between plaintiff and defendant in relation to the above agreement plaintiff asked defendant the privilege of looking at the notes; that defendant, not suspecting any fraudulent design, handed the notes to him for inspection; that plaintiff having got them in his possession put them in his pocket and left defendant, and refused to return the notes or the $1,000, although demanded by the defendant; that the note sued on is one of those notes so obtained by plaintiff; that the possession was procured by fraud.

At the trial evidence was adduced showing that plaintiff obtained possession of the notes in the manner stated in the answer. A letter written by one C. E. Kemp, in behalf of plaintiff, was admitted in evidence in behalf of defendant. Kemp stated that he wrote the letter at the request of plaintiff; that he was acting as his clerk and agent; that he had embodied in the letter the ideas he had derived in relation to the sale of the land and the execution of the notes from conversations with Carter, the plaintiff; that at the time the letter was written Carter was in St. Louis, and had previously to leaving requested witness to attend to the matter. The letter is as follows: “St. Joseph, Mo., October 2, 1857. Mr. Joseph McClintock: Dear Sir--This will certify that the bearer, Mr. Leopold, is authorized to close the trade between W. M. Carter and McClintock and Murray, being a sale of five acres of land, for the sum of $3,000, on which purchase you have paid $1,000 cash, and for the balance, $2,000, per agreement, you were to execute your joint promissory notes for $1,000 each, one of said notes being payable six months after date, and the other payable twelve months after date from the date of the purchase of said land. Mr. Carter is at present absent at St. Louis and has requested me to attend to this matter for him, and have no doubt but that you will fulfill any contract made with him in regard to this transaction. Yours, very respectfully, [signed] W. C. Carter, by C. E. Kemp.” By the bond, which was given in evidence, three notes, of $663.33 each, were to be given.

The court refused the following declarations of law asked by plaintiff: “2. There is no evidence offered in behalf of defendant to sustain his answer or entitle him to a verdict.” The following declarations of law asked by defendant were given: “1. If the purchase was made in the name of defendant and John D. Murray of the land in question, in...