Daviess Cnty. Sav. Ass'n v. Sailor

• Decision Date: 31 May 1876
• Citation: 63 Mo. 24
• Court: Missouri Supreme Court
• Parties: THE DAVIESS COUNTY SAVINGS ASSOCIATION, Appellant, v. BENJAMIN K. SAILOR, JOHN BALLINGER & JOSHUA M. SAILOR, Respondents.

63 Mo. 24

THE DAVIESS COUNTY SAVINGS ASSOCIATION, Appellant,

v.BENJAMIN K. SAILOR, JOHN BALLINGER & JOSHUA M. SAILOR, Respondents.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Livingston Circuit Court.

Hale & Eads, with Collier & Hicklin, for Appellant, cited: Driscoll vs. Mateer, 31 Mo., 325; Clark vs. Barnett, 19 Mo., 39; Freliegh vs. Ames, 31 Mo., 253; 1 Pars. Bills; 2 Mo., 325; note; Murray vs. Judah, 6 Cow., 434; Seymour vs. Minton, 17 John., 169; Story Bills, p. 280, § 253; 22 Ill., 332; also, 12 Met., 545; Picot vs. Legrange, 22 Mo., 587; McClure vs. Bell, 45 Mo., 178; Sto. Ag., §§ 114, 115; Flickner vs. Bank of United States, 8 Wheat., 360; United States vs. Dunn, 6 Pet., 51; Bank of Metropolis vs. Jones, 8 Pet., 12; Espy vs. Bank of Cincinnati, 18 Wal., 604; Franklin Bank vs. Stewart, 37 Mo., 519; Cochecho Nat. Bk. vs. Haskell, 51 N. H., 116; Fulton Bank vs. N.Y. & Sharon Canal Co., 4 Paige, 127; Brown vs. City of Utica, 2 Bart., 104; New Eng. Fire and Mar. Ins. Co. vs. Scettler, 38 Ill., 166; Wright vs. Geo. R. R. & Banking Co., 34 Ga., 330; Dedham Sav. Inst. vs. Slack, 6 Cush., 408; Morse Banks & Banking, 178; Olney vs. Chad ey, 7 R. I., 224.Shanklin, Low & McDugal, for Respondents, cited: Driscoll vs. Mateer, 31 Mo., 325; Baker vs. Briggs, 8 Pick., 128; Harris vs. Brooks, 21 Pick., 195; Carpenter vs. King, 9 Met., 511; Bank vs. Klingensmith, 7 Watts., 523; Hickok vs. Bank, 35 Vt., 450; McCallum vs. Hinkley, 9 Vt., 143; Chambers vs. Cochran, 18 Iowa, 167; Thornburg vs. Maddon, 33 Iowa, 380; Pickard vs. Sear, 6 Ad. & El., 475; Freeman vs. Cook, 2 Exch., 654; Cochecho Nat. Bk., vs. Haskell, 51 N. H., 116.

NAPTON, Judge, delivered the opinion of the court.

This suit was on a promissory note executed by John Ballinger and Benj. K. Sailor, to Joshua M. Sailor, and assigned by the latter to the plaintiff. This note was dated January 25th, 1872, and was payable in one month from date and bore interest from maturity at 10 per cent. per annum. The suit was against the two makers and the assignor.

The defense of Ballinger was that he was merely a security for J. M. Sailor, that on or about the 2nd day of July, 1872, he called on the plaintiff to ascertain if said note had been paid by said Joshua M. Sailor, and was informed that although said note had not been paid, plaintiff had made arrangements with said Joshua M. Sailor, by which they looked to him alone for payment of said note, and that they did not look any longer to this defendant for payment of said note, or any part thereof, and this defendant, relying upon such statements of plaintiff, did not give plaintiff notice in writing to bring suit upon said note against the said defendants, as he at the time intended to do and would then have done but for such statements; and that, relying on these statements, the defendant, Ballinger, took no steps to secure himself against liability on said note as he would and could have done but for said statement; that at the time said statements were made, and for several months thereafter, said Joshua M. Sailor was a resident of said county of Daviess and was solvent, and had a large amount of unincumbered real and personal property out of which this defendant could and would have secured himself fully against any liability on said note, had he not been misled by said representations of plaintiff; that a short time before the institution of this suit said Joshua M. Sailor became insolvent and absconded, and has ever since been a non-resident of this State, and has no property out of which any part of said note could be made.

To sustain this plea, defendant Ballinger testified on the trial, that in July, 1872, he went to the bank to see Mr. Tomlin, the cashier, and asked him if the Sailor note had been paid. He said it had not, but that the bank at Chillicothe or McFerran's bank had a mortgage on Sailor's land; had been loaning him money; was carrying him, and that plaintiff would not look to him (Ballinger) any longer for the payment of the note. In consequence of these statements, defendant and witness thought no more of the matter, and he was surprised at the suit some fourteen months after the maturity of the note.

The evidence was objected to on the ground that the cashier had no right to bind the bank by such statements, and because they did not correspond with the defense set up in the answer.

Tomlin, the cashier, was examined on the other side, who swore that no such conversation ever occurred and that he never had any conversation whatever with Ballinger after this note was executed in July, 1872, until this suit was brought. He stated some conversations with Ballinger in 1871, in which he told Ballinger of Sailor's indebtedness to the Chillicothe bank by way of warning.

There was then evidence given as to Sailor's condition in 1871, and 1872, and his subsequent insolvency, his abandonment of the State in April, 1873, etc. It is unnecessary that this testimony should be stated, as no point arises on it.

The court gave a number of instructions for the plaintiff and also for the defendant, all based on the assumption that Tomlin the cashier, represented the bank in this interview, or alleged interview, with Ballinger. It is useless to recite these instructions as no point is made on them. On the evidence admitted the issue was a very plain question of veracity between the cashier and the defendant Ballinger, and the verdict having...