Cayuga County Nat. Bank v. Dunklin

• Decision Date: 28 February 1888
• Citation: 29 Mo.App. 442
• Parties: CAYUGA COUNTY NATIONAL BANK, Respondent, v. JAMES L. DUNKLIN, Senior, Appellant.
• Court: Missouri Court of Appeals

29 Mo.App. 442

CAYUGA COUNTY NATIONAL BANK, Respondent, v. JAMES L. DUNKLIN, Senior, Appellant.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the Jefferson Circuit Court, HON. JOHN L. THOMAS, Judge.

Affirmed.

JOS. J WILLIAMS, for the appellant: (1) The court erred in admitting in evidence, at the instance of plaintiff, the words on the back of the note, " The E. M. Birdsall Co.," " E. B. Mosher, Secy." Edwards on Bills and Promissory Notes (1 Ed.) 83. (2) The court erred in permitting plaintiff to read in evidence the deposition of E. B. Mosher, to establish his authority to endorse the note for the E. M Birdsall Company. (3) The court erred in permitting plaintiff to read in evidence the words on the back of the note purporting to be an endorsement by the Birdsall Company. The petition alleges that the Birdsall Company was a corporation. That averment was put in issue by the answers; and there was no proof tending to establish the corporate existence of any such company. (4) The court erred in refusing to permit defendant to prove that the engine and threshing machine were of no value for the purpose for which they were purchased. Bar v. Baker, 9 Mo. 850. The pretended endorsements, although improperly admitted in evidence, did not, as a matter of fact, establish a transfer of the note by endorsement from the E. M. Birdsall Company, or show an endorsement of it to plaintiff by any party connected with it. (5) The court erred in the instruction, given the jury of its own motion, by precluding James L. Dunklin, Senior, from availing himself of the defence, that he signed as an endorser, without first proving that plaintiff took the note with notice of that fact. Patterson v. Cave, 61 Mo. 439; Hedges v. Seeley, 9 Barb. 214.

W. H. H. THOMAS and THOS. B. CREWS, for the respondent: James L. Dunklin, Sr., is a maker of the note in controversy. Lewis v. Harvey, 18 Mo. 74; Chaffee v. Railroad, 64 Mo. 193; Semple v. Turner, 65 Mo. 696. It was unnecessary for plaintiff to prove the corporate existence of the Birdsall Company. A blank endorsement of a promissory note by the payee is prima-facie evidence of an assignment for value, and may be so treated by any subsequent assignee. Odell v. Presburg, 13 Mo. 233; Grill v. Laxen, 7 Mo.App. 97; 1 Danl. Neg. Inst. (2 Ed.) 662, 663.

OPINION

ROMBAUER J.

This is an action instituted upon a promissory note, in the following words:

" $351.26. Pevely, Mo., November 10, 1883.

On the tenth day of November, 1884, the subscribers, whose postoffice is Pevely, county of Jefferson, and state of Missouri, we promise to pay the E. M. Birdsall Company or order, three hundred and fifty-one and 26/100 dollars, for value received with interest and exchange at eight per cent. per annum from date, payable at the Bank of Commerce in St. Louis, Missouri. We do hereby relinquish and waive the benefit of all laws exempting real and personal property from levy and sale.

DUNKLIN BROS."

On the reverse of the note, placed there at the date of its delivery and prior to the signature of the payee, is the signature of James L. Dunklin, the appellant. This fact, under the decisions in this state, in the absence of extrinsic evidence, constituted him a joint maker (Lewis v. Harvey, 18 Mo. 74), and constituted him a joint maker regardless of any agreement between himself and the payee, as against any holder acquiring the note for value before maturity, without notice of such agreement. Chaffee v. Railroad, 64 Mo. 193.

The defendant was sued as a joint maker of the note. The petition stated that the E. M. Birdsall Company, a corporation and payee thereof, had endorsed and delivered it to the Birdsall Company, another corporation, and the latter had endorsed and delivered it to plaintiff for value before maturity.

The defendant's answer denied that he was a joint maker of the note, and averred that he was an accommodation endorser thereof; it also denied the endorsement of the E. M. Birdsall Company and the Birdsall Company as claimed by plaintiff, and denied the existence of the latter company.

The answer stated that no notice of presentment and dishonor was given to the defendant at the maturity of the note; that one of the makers was a minor when the note was given, and that the note was wholly unsupported by any consideration.

The affirmative defences were denied by reply. The trial of the cause before a jury resulted in a judgment for plaintiff, and the defendant appeals.

The affirmative defences in the answer become unimportant in view of the fact that the jury, under the instruction of the court hereinafter set out, found that plaintiff was an indorsee of the note for value before maturity, and without notice of any agreement constituting the defendant an endorser. This renders the defences of the maker's minority, of the defendant's liability as indorser only, and of a failure of consideration, foreign to any inquiries properly arising upon this appeal.

The defendant excepted to the court's rulings in the admission of evidence, and instructions to the jury, and assigns them as errors.

Upon the trial the plaintiff gave in evidence the note and its endorsement. The endorsements of the " E. M. Birdsall Co." and " The Birdsall Co." were by printed stamp,...