Citizens' Bank of New Franklin v. Gaines

• Decision Date: 11 January 1926
• Docket Number: No. 15484.,15484.
• Parties: CITIZENS' BANK OF NEW FRANKLIN v. GAINES.
• Court: Missouri Court of Appeals

278 S.W. 784

CITIZENS' BANK OF NEW FRANKLIN v. GAINES.

No. 15484.

Kansas City Court of Appeals. Missouri.

January 11, 1926.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

"Not to be officially published."

Action by the Citizens' Bank of New Franklin against J. T. Gaines. Judgment for defendant, and plaintiff appeals. Affirmed.

Roy D. Williams and W. W. Carpenter, Jr., both of Boonville, for appellant.

Sam C. Major, of Fayette, and Richard K. Bridges, of Tulsa, Okl., for respondent.

ARNOLD, J.

This is an action on a promissory note, and the facts of record are as follows:

On May 11, 1921, W. W. Carpenter, E. R. King, W. 0. Cox, and J. T. Gaines (defendant herein) executed a note to plaintiff bank for the sum of $3,000 for the purpose of tiding over the financial straits of the Home Electric & Ice Company, a corporation, whose moving spirit was W. W. Carpenter, one of the signers of said note. The other signers were shareholders in said corporation, but the corporation itself does not appear to have been one of the signers of the note.

It further appears that on March 1, 1922, another note for $3,000 was executed, the makers and payee thereof being the same as those appearing on the note of May 11, 1921, which last-named note was marked paid and delivered back to the makers. On June 17, 1922, another note in the same amount was executed in renewal of the note of March 1, 1922, which was marked paid, canceled, and delivered to Gaines, defendant herein.

On September 17, 1922, the four makers of the preceding notes executed another for $3,000, and `the note of June 17, 1922, was stamped paid. On January 10, 1923, the same parties executed another note, but this time for $2,668, and the note of September 17, 1922, was marked paid and canceled. On April 24, 1923, said King, Cox, and Carpenter, of the signers of the preceding notes, executed another note for $2,730.22, and finally, on September 15, 1924, King and Carpenter executed a note for $2,800, but Gaines, the defendant herein, refused to sign the two notes last above named.

Records of plaintiff bank which were introduced in evidence show all these notes under the name of the Home Electric & Ice Company, excepting the last note, which is shown under the names of E. R. King and W. W. Carpenter. Defendant appears only as an indorser. The evidence shows that, while the note dated September 17, 1922, was stamped "Paid" by the bank, it was not delivered to the makers, but was retained by plaintiff bank. The petition herein is based upon the allegation that this note of September 17, 1922, was paid with the exception of $625, and that defendant is indebted to plaintiff in this amount, and judgment is prayed therefor.

The answer admits the execution of the note, but makes general denial of all other allegations in the petition. As affirmative defense, payment of the note by renewals is pleaded. The reply admits the word "Paid" was stamped upon said note, but alleges that such stamp was a memorandum of the bank, and that the note was never paid. A jury was waived, and the cause was tried to the court sitting as a jury. At the close of all the evidence, plaintiff requested, and the court refused, a peremptory instruction in its favor. The judgment was for defendant. Motion for new trial was ineffectual, and plaintiff appeals.

As we view the controversy, the only question for our determination is whether or not each renewal note paid the debt evidenced by the preceding note, and, of course, parties are not agreed on this point. Plaintiff insists, first, that the court erred in refusing its peremptory instruction in the nature of a directed verdict, and argues that the courts have held that, where the evidence is free from doubt or suspicion, and only one verdict could be rendered, it is proper for the court to direct such a verdict. Citing Bank v. Wood (Mo. App.) 186 S. W. 1186.

We have examined this case, and fail to find any ruling in support of plaintiff's contention in this respect. However, the rule is stated correctly by plaintiff, but as we view the facts it has no application here. The evidence shows that some of the renewal notes were executed and delivered after the note sued on was executed—in fact, marked paid and canceled. This is some evidence from which the court, sitting as a jury, might have found that the note in question was paid, and therefore the case is not one...