Citizens' Bank v. Douglass

• Decision Date: 17 June 1916
• Docket Number: No. 1548.,1548.
• Citation: 187 S.W. 158
• Parties: CITIZENS' BANK OF SENATH v. DOUGLASS et al.
• Court: Missouri Court of Appeals

187 S.W. 158

CITIZENS' BANK OF SENATH v. DOUGLASS et al.

No. 1548.

Springfield Court of Appeals. Missouri.

June 17, 1916.

Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.

Action by the Citizens' Bank of Senath against W. H. Douglass and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Bradley & McKay, of Kennett, for appellant. W. H. Douglass, of St. Louis, and W. M. Morgan, of Marble Hill, for respondents.

ROBERTSON, P. J.

This case has been before the St. Louis Court of Appeals, 178 Mo. App. 664, 161 S. W. 601. The facts were there stated. After the case reached the circuit court of Dunklin county from that appeal a change of venue was taken and the cause sent to Bollinger county, where, upon a jury trial, a verdict was returned for defendants, and plaintiff has appealed. The St. Louis Court of Appeals decided that where third parties agreed with the makers of a note, for a valuable consideration, to assume and pay the note and the payee thereafter extends it for said parties so assuming without the knowledge or consent of the makers, that thereby the makers of the note are released, but not by reason of anything found in our present negotiable instrument law. Since then that court has reaffirmed that doctrine. Calloway v. McKnight, 180 Mo. App. 621, 624, 163 S. W. 932; Moore v. McHaney, 191 Mo. App. 686, 694, 178 S. W. 258. Upon this theory of law the case was retried, after defendants filed an amended answer, resulting as above stated. The facts which were before the St. Louis Court of Appeals and upon which it based its judgment are not materially different than those developed at the trial which is now before us for review. Most of the objections now submitted to us in behalf of the plaintiff have been disposed of adversely to it in the opinion of that court, hence we shall undertake to refer only to such questions as may be necessary in passing upon the new points made.

It is urged that there is no evidence that Caneer ever extended the time of payment of the note or that he had any authority to do so. The St. Louis Court of Appeals held that this contention was untenable, and while the testimony upon which it was so held was not fully set out, we apprehend that it was of no less weight than what is submitted here. We are of the opinion that what is before us is sufficient to show his authority.

In the last trial there was offered in evidence a copy of a letter from Gardner to the plaintiff bank stating that, Caneer and Gillespie having assumed the payment of the note, he also had agreed to pay it on September 11, 1909, in the event Caneer and Gillespie did not. The insistence is made that this copy should not have been offered in evidence without showing that the original had been sent to or received by the bank. Since it has been held that the testimony was sufficient to justify the conclusion that Caneer, when the transaction was had in St. Louis, was acting for the bank and the letter of which this was a copy was afterwards found among his personal letters the loss of the original was properly accounted for, and we hold there was no error in the admission of this copy.

It is unnecessary for us to notice the objections now urged to the instructions given to the jury, as all of the points now made against them have been settled adversely to the plaintiff by the decision of the St. Louis Court of Appeals.

In addition to the alleged error in the admission of the copy of the letter it is said that the appellant had the right to open and close the argument, which was requested and refused. The defendants admitted the execution and delivery of the note, but it is asserted that they did not admit the ownership, and that the note was unpaid. In this we think the contention is defective. The plaintiff appears to have voluntarily assumed to make the proof of these two facts, but they were not made issues in the case; neither under the pleadings nor by the conduct of defendants in the trial. Unquestionably the opening and closing of the argument to the jury was properly allowed in behalf of the defendants.

It is earnestly urged in behalf of the appellant that reversible error was committed by the trial court in not properly rebuking an argument made in behalf of defendant in the closing remarks in the last address to the jury. These remarks were addressed to something that had been previously...