Cox v. Higdon

• Decision Date: 04 December 1932
• Docket Number: No. 17932.,17932.
• Citation: 67 S.W.2d 547
• Parties: COX v. HIGDON.
• Court: Missouri Court of Appeals

67 S.W.2d 547

COX v. HIGDON.

No. 17932.

Kansas City Court of Appeals. Missouri.

December 4, 1932.

Rehearing Denied January 29, 1934.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State reports."

Action by Florence W. Cox against C. A. Higdon. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Charles M. Miller, of Kansas City, for appellant.

W. W. Blain, of Sedalia, for respondent.

TRIMBLE, Judge.

On May 6, 1931, defendant, C. A. Higdon, executed and delivered a note to Herbert Cox for $250, bearing 5 per cent. interest from date and due March 1, 1932. Two or three days after its execution, Herbert Cox, the payee, sold and indorsed the note to his mother, the plaintiff, Florence W. Cox. On March 13, 1932, defendant, by check, paid plaintiff $10.40 on the note as interest, and same was indorsed underneath the indorsement of Herbert Cox on the back of said note, thus: "Paid $10.40 March 12, 1932. Interest." The present suit was brought September 19, 1932, to recover on said note.

Defendant, in his amended answer, admitted the execution and delivery of the note sued on, but denied each and every other allegation.

The amended answer further set up that Herbert Cox, the payee, is the son of the plaintiff, Florence W. Cox, and the brother-in-law of the defendant and that through a business transaction wherein the result was that defendant owed Herbert Cox $650; and he gave said Cox his check for said $650, but afterward, through Cox' fraud and misrepresentation that the check was for only $400, defendant was induced to give the note in controversy for $250 to pay the rest of the $650 debt that a check for only $400 would not, and did not, cover; when in fact the check as really given was for $650, thus paying the aforesaid debt in full, so that there was, in fact, no consideration for the $250 note.

Said amended answer also set up that plaintiff was not a holder of said note in due course nor an innocent purchaser of said note for value before maturity, and is not the real owner of said note; that plaintiff and her son, Herbert Cox, conspired together to cheat and defraud defendant out of $250, the amount of the note sued on, by a pretended sale of the note by Herbert Cox to his mother the plaintiff; that plaintiff knew of Herbert's fraud and deceit in getting defendant to execute the note; and that nothing was paid by plaintiff to said Herbert Cox for said note.

The plaintiff's reply to this was a general denial.

A jury was impaneled and the trial began. After proving the execution of the note (which was already admitted in the amended answer), and the sale and indorsement of the note by Herbert Cox to plaintiff, "within three or four days" after it was given (and consequently before maturity), the note was duly offered in evidence and plaintiff rested.

Over the objections and exceptions of plaintiff, defendant sought to introduce evidence to prove that the note was obtained by fraud from defendant, that plaintiff was not an innocent purchaser thereof for value before maturity, and that Herbert Cox and plaintiff conspired with each other to defraud defendant out of the amount of said note.

At the close of all the evidence, plaintiff moved the court to strike out all testimony in reference to transactions had between Herbert Cox and defendant, for the reason that plaintiff was an innocent holder for value before maturity, and the testimony asked to be stricken out was inadmissible, incompetent, and immaterial, not tending to prove or disprove any issue in the case. This motion was overruled, the plaintiff excepting. A motion for a directed verdict in favor of plaintiff was then made, but it was likewise overruled, the plaintiff excepting. The court then sent the case to the jury after giving it an instruction which told the jury that, if they found and believed from the evidence that plaintiff purchased the note sued on for a valuable consideration before maturity, then their verdict must be for plaintiff. The court also instructed the jury there was no evidence of a conspiracy to cheat and defraud defendant; but refused to withdraw the question of the alleged fraud from the jury.

During the progress of the trial, defendant, over the objection and exceptions of plaintiff, was permitted to introduce evidence of alleged transactions, relating to the execution of the note sued on, between Herbert Cox, the payee, and defendant. The latter testified that in the last part of April, 1931, Herbert Cox had a sale at his farm, in defendant's name, and that all of the money received from the sale was deposited in defendant's name in the Smithton Bank; that Herbert Cox owed defendant for some cattle, and that defendant, with one White, had bought certain land from Herbert Cox for which they had not yet paid, and, after the sale, and about May 1, 1931, they met and figured up their accounts, with the result that the amount due Herbert Cox was found to be $650, and defendant gave Herbert Cox his check for that amount, but that shortly thereafter said Cox claimed to defendant that the check the latter gave him was, in fact, for only $400, and that defendant, therefore, owed a balance of $250 for which Herbert Cox agreed to take defendant's note, due March 1, 1932, at 5 per cent.; that shortly thereafter they met in Sedalia at the law office of defendant's brother, R. A. Higdon, and the brother, R. A. Higdon, at defendant's request, prepared the note sued on, and thereupon defendant signed and delivered it to Herbert Cox;...