Cravens v. Gillilan

• Decision Date: 30 April 1881
• Citation: 73 Mo. 524
• Parties: CRAVENS v. GILLILAN, Appellant.
• Court: Missouri Supreme Court

73 Mo. 524

CRAVENS

v.GILLILAN, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

This was a suit against Nathan Gillilan on a promissory note. The petition was in the ordinary form. The answer was a plea of non est factum. An amended reply denied generally each and every allegation of the answer, and further averred specially that “after the execution of the note in suit, as stated in plaintiff's petition, to-wit: On or about the -- day of June, 1874, upon having his attention called to said note, defendant, Nathan Gillilan, told plaintiff that said note was all right, and that he would pay it, and thereby then and there ratified the action of Robert L. Gillilan in signing the name of this defendant to said note.” Defendant moved to strike out these averments on the ground that they were a departure from the petition, and an attempt to avoid the facts stated in the answer without admitting the truth thereof. This motion was overruled.

At the trial, plaintiff testified as follows: On the day of the date of the note in suit Robert L. Gillilan came to my house and told me that his sister, Mrs. Mary J. Clendennen, since deceased, needed some money, and that his father, Nathan Gillilan, had sent him to me to get it. I wrote the note and Robert L. Gillilan signed all the names to it in my house, and I let him have the money. Defendant was not present.

With a view of showing ratification, plaintiff further testified: Mrs. Clendennen died in the winter of 1873-4. I never spoke to defendant about the note in suit until some time after her death. I think it was in June, 1874, at which time I met defendant in Gallatin and told him about the note, how much it was for, whose names were to it, and that Robert L. said, when he got the money, that it was for Mrs. Clendennen. The defendant then said, “If you want the money, we will pay it.” I told him that I did not need the money, that I applied to him because Mrs. Clendennen was dead, and that my object in mentioning the matter was that they might take the note up and have it probated against Mrs. Clendennen's estate and give a new note. I knew that Nathan and Robert were each doing a large business, and that they might have overlooked the matter. Nathan then asked me if I had the note with me. I told him that I had not, that it was at the bank. Nathan said he would see Robert (who was then in town) about it, and left me. This was the first conversation we had about it. In about an hour after we had the conversation just mentioned, defendant Nathan came to where I was and said that he had seen Robert about the note, that it was all right, that I need not have it probated against Mrs. Clendennen's estate, and that it was not necessary to give a new note as it was Robert's debt, or Robert's note, and that Robert owed the money. Our conversation related to giving new note, and taking up the old one, and having it probated against Mrs. Clendennen's estate. I think Robert L. was arrested in September, 1874, and soon after his arrest, as his creditors were attaching his property, I started with Mr. Leopard to Nathan's residence to see him about it, and to get him to assist me in getting hold of Robert's property so as to save both of us. On the road we met defendant, and he asked me if I was going to his house; told him I was; nothing said as to what for; he said he had to go to Gallatin and we also drove back. After we got to town defendant came to me and asked me to show him the note; I did so, and when he looked at it he said it was a forgery so far as his name was concerned, and that he believed Mrs. Clendennen's name was also forged.

Defendant objected to this testimony on the ground, among others, that under the pleadings evidence of ratification was inadmissible; but the objection was overruled. Defendant offered no evidence.

On motion of plaintiff the court gave the jury the following instruction: Although the jury may believe that Robert L. Gillilan, at the time he signed Nathan Gillilan's name to the note, had no authority so to do, yet if they believe from the testimony that defendant, after he had been informed that his name was signed to the note by Robert L. Gillilan, and with the full knowledge of all the facts connected therewith, promised plaintiff to pay it, the finding must be for plaintiff.

On motion of defendant, the court gave the following instructions. (1) There is no evidence that Nathan Gillilan signed or authorized Robert L. Gillilan to sign his name to the note in suit. (2) Before the jury can find for the...