Davis v. McColl

• Decision Date: 06 April 1914
• Citation: 166 S.W. 1113,179 Mo.App. 198
• Parties: FRANK H. DAVIS, Respondent, v. A. J. McCOLL et al., Appellants
• Court: Kansas Court of Appeals

166 S.W. 1113

179 Mo.App. 198

FRANK H. DAVIS, Respondent, v. A. J. McCOLL et al., Appellants

Court of Appeals of Missouri, Kansas City

April 6, 1914

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Hughes & Whitsett for appellants.

Lathrop Morrow, Fox & Moore for respondents.

OPINION

TRIMBLE, J.

In this caseplaintiff brought five suits in a justice court of Jackson county, Missouri, upon five notes by merely filing with the justice the said notes without further statement of his cause of action.Summonses were issued and served upon the defendant in each of the suits and on the return day judgment was rendered for plaintiff.Defendant appealed to the circuit court where the five suits were by agreement consolidated into one.

A jury was waived and the cause submitted to the court.Plaintiff offered in evidence the five notes and rested.Defendant demurred.The court overruled the demurrer and rendered judgment for plaintiff on the notes.Defendant appealed.

All of the notes are dated at Des Moines, Iowa, December 29, 1906 and are identical, except they respectively fell due on the first days of August and October, 1907, and April, May, and July, 1908.The following sets forth the other terms of all of the notes:

"$ 200.00.Des Moines, Ia., Dec. 29, 1906.

On or before the 1 day of May, 1908, for value received I promise to pay to the order of A. J. McColl the sum of two hundred dollars, payable at Des Moines, Iowa, with interest at 8 per cent per annum from date.Interest payable semiannually.

Upon default of payment of this note the makers, endorsers, guarantors and sureties agree to pay all attorneys' fees and expenses of collection, and consent that any Justice of the Peace may have jurisdiction of this note to the amount of $ 300 and--do hereby severally waive demand of payment, protest and notice of protest of this note, and consent that time of payment may be extended without notice.A failure to pay interest when due shall cause this note to become due.

A. W. DUDLEY."

On the back of each appeared the following: "A. J. McColl.Without recourse on me.J. S. Turrill."The name of A. J. McColl on the back of the notes was admitted to be his signature.

It will be observed that the notes provide for the payment of attorneys' fees and expenses of collection, and that the time of payment may be extended without notice.Under the statutory provisions of the Negotiable Instrument Law, this would not destroy their negotiability.[Sections 9972, 9973, R. S. Mo. 1909.]However, without these statutory provisions, the notes are not negotiable.[McCoy v. Green,83 Mo. 626, l. c. 633;First National Bank v. Gay,63 Mo. 33;Samstag v. Conley,64 Mo. 476;Creasy v. Gray,88 Mo.App. 454;Culbertson v. Nelson,93 Iowa 187, 61 N.W. 854;Woodbury v. Roberts,59 Iowa 348, 13 N.W. 312;Chouteau v. Allen,70 Mo. 290;Coffin v. Spencer39 F. 262.]

And it will be further noticed that the notes were all made in Iowa, are payable in Iowa, and are, therefore, Iowa contracts.[39 Cyc. 898;The South Missouri Land Co. v. Rhodes,54 Mo.App. 129;Central National Bank v. Cooper,85 Mo.App. 383;Case Threshing Machine Co. v. Tomlin,161 S.W. 286, l. c. 289 and cases cited.]

If the note is nonnegotiable the mere writing of his name by defendant McColl on the back thereof will not make him liable as an endorser.There must be proof of the actual agreement under which the endorsement was made and that it was for a sufficient consideration.[Shaffstall v. McDaniel,152 Pa. 598, 25 A. 576;4 Am. & Eng. Ency. of Law(2 Ed.) pp 479-80;Story v. Lamb,52 Mich. 525, 18 N.W. 248;Frevall v. Fitch, 5 Wharton (Pa.) 325.]There is a vast difference between the liability of an endorser on a negotiable and a nonnegotiable instrument.[Norton on Bills and Notes (3 Ed.) 9;1 Daniel on Negotiable Instruments(6 Ed.) Sec. 666.]Consequently, the mere introduction in evidence of a non-negotiable note, with proof of the signature of the payee on the back, will not make out a case against one as an endorser.There must be proof of the contract made at the time of the indorsement.This is said without passing on the question whether any one but the immediate indorsee could sue the endorser of a nonnegotiable instrument.

There was no proof that Iowa has passed and has in force the statute known as the Negotiable Instruments Act, and the liability of defendant must be determined by the law of that state if the same can be ascertained or presumed.We cannot take judicial knowledge of the existence of such statute in Iowa.In Rashall v. Railroad,249 Mo. 509, 155 S.W. 426, it is said: "Our courts do not take judicial cognizance of the laws of sister states or foreign countries when they are issuable facts in any controversy.In such cases formal proof must be made just as of any other fact, and it is immaterial that the court may be possessed of independent knowledge of the foreign laws."

But plaintiff contends that as there is no proof of what the law in Iowa is, we are authorized to apply the law existent and in force in our own state.This may be true where there is neither proof nor ground for presumption as to what the law in the other State is.In such case, since the court has no proof of the law in force in the other State and has nothing upon which to base a presumption as to what that law is, it will not say it is helpless and without law, but will apply the law of its own forum, whether that be the common law or a statute.But whenever the other State in question is one concerning which we are required to take judicial knowledge of the fact that the common law was in force prior to its admission to the Union, then, in the absence of proof to the contrary, we must presume that the common law has continued in force and is still in existence there.If, however, the other state is one of which we can take judicial knowledge that the common law was never in force prior to its admission, we can in the absence of proof as to its law, apply our own statutes and system of law.As said in Hazelett v. Woodruff,150 Mo. 534, 51 S.W. 1048, "it is only in respect of those States which were never subject to the common law that, in the absence of proof as to the lex loci contractus, the court will apply the statute laws of the forum."

Consequently, the question arises to which class of States does Iowa belong?Is she a State in which the common law never prevailed before her admission into the Union, or is she one in which the common law was put in force, prior to her admission, by any statute or ordinance of which we are to take judicial notice?Here it might be readily taken for granted that, inasmuch as Iowa was a part of the Louisiana Purchase and was therefore under civil or French law, she was never under the common law prior to her admission.But the fact that she was under the French law while a part of the Louisiana Purchase is not material if the common law was, prior to her admission, put in force there by any statute of which we are required to have judicial knowledge.If it was, then we must take judicial notice that the common law was, by the passage of such ordinance or statute, put in force there at that time, and, having been once in force, that law is presumed to have remained in force until the contrary is shown.The case of Flato v. Mulhall,72 Mo. 522, is not contrary to but supports this rule.The court in that case held that judicial notice could not be taken of the laws of Texas; that as no proof of the Texas laws was offered, and as there was no basis for a presumption that the common law was ever in force there, the court could not presume that it was.At page 525, the court say: "If the common law ever prevailed there, or now prevails there, it must be by virtue of some statutory provision of which we cannot take judicial notice.As no evidence was introduced, and no presumption can be indulged as to the lex loci contractus, the law of the forum must govern."(Italics ours.)

So that if, as stated before, the common law was put in force in Iowa, prior to her admission, by any ordinance or statute of which we must take judicial notice, then that law is presumed to have remained in force until now, in the absence of any proof to the contrary.

An examination of the various laws and ordinances of Congress dealing with Iowa prior to her admission into the Union, and of the Territorial laws of Missouri when Iowa was a part of the Territory of Missouri will disclose that the common law was clearly established there by laws of which we are bound to take judicial knowledge.

These various Acts of Congress, which are all of a public nature, and the Territorial Laws of Missouri, are all within our judicial notice without proof.[1 Greenleaf on Evid. Sec. 490;17 Am. & Eng. Ency. of Law (2 Ed.) 928;Mobile, etc. Ry. v. Bromberg,37 So. 395, 401;Missouri K. & T. Ry. v. Wise,109 S.W. 112;Overton v. McCabe,109 S.W. 861;Perry v. Movis,104 S.W. 571;Greene v. Boaz,47 S.W. 255.]

After possession was taken of the Louisiana Purchase under the treaty with Napoleon and the Act of Congress of October 31,...