Davis v. Robb

• Decision Date: 28 September 1928
• Docket Number: No. 4476.,4476.
• Citation: Davis v. Robb, 10 S.W.2d 680 (Mo. App. 1928)
• Parties: DAVIS v. ROBB et al.
• Court: Missouri Court of Appeals

10 S.W.2d 680

DAVIS v. ROBB et al.

No. 4476.

Springfield Court of Appeals. Missouri.

September 28, 1928.

Rehearing Denied November 22, 1928.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by George W. Davis, administrator of the estate of Sarah Frances Pallett, deceased, against Effie E. Robb and T. C. Wickizer. Judgment for plaintiff, and defendant Wickizer appeals. Affirmed.

Neale & Newman and E. M. Wright, all of Springfield, for appellant.

Thomas H. Gideon & Son, of Springfield, for respondent.

COX, P. J.

Action upon a promissory note. Plaintiff recovered, and defendant appealed.

The petition alleged that the note sued upon was executed by Q. E. Robb, T. C. Wickizer, and Effie E. Robb, and made payable to Sarah Frances Pallett and R. C. J. Pallett; that R. C. J. Pallett indorsed the note to Sarah Frances Pallett; that Q. E. Robb was dead and that Sarah F. Pallett had obtained a judgment in probate court against his estate, but that the estate was insolvent and nothing could be collected. Judgment was then prayed for the amount due on the note against the defendants, T. C. Wickizer and Effie E. Robb, the two other parties alleged to be makers of the note.

The defendant Effie E. Robb made default. Defendant Wickizer filed a separate answer and alleged that he signed the note purely for accommodation and with the agreement with the payees in the note at the time that he was not undertaking any personal liability by reason of becoming an indorser on said note; that the parties then on the note were himself and Q. E. Robb; that R. C. J. Pallett had died, and then denied any knowledge as to whether said R. C. J. Pallett had transferred his interest in the note to the other payee, Sarah F. Pallett; that, after the death of R. C. J. Pallett, the said Sarah F. Pallett, without the knowledge or consent of said Wickizer, procured the signature of Effie E. Robb to said note, thereby altering the number and relationship of the parties to said note without his knowledge or consent; that, during the life of said Sarah F. Pallett, she expressly and specifically agreed with him that he was not and should not be under any liability to her by reason of his name appearing on said note. The answer also pleaded that he did not execute the note sued upon.

The reply was both a general and special denial of each defense pleaded in the answer. As to the signature of Effie E. Robb to the note, the reply alleges that, about the time of the death of Q. E. Robb, said Wickizer caused his wife or widow to sign said note to protect himself as one of the makers thereof, and that her signature to the note was placed there with his knowledge and at his request.

There is no direct evidence that Sarah F. Pallett and R. C. J. Pallett, the payees in the note, were husband and wife; but that fact seems to be conceded. Plaintiff proved the indorsement of the note by R. C. J. Pallett to Sarah F. Pallett, so that in any event there could be no question that she was the owner of the note in her lifetime.

The defense of a release of Mr. Wickizer by Sarah F. Pallett in her lifetime was not proven; neither was the fact that he was an accommodation indorser, with the express agreement that he was not to be held personally liable proven. This left the sole issue of fact at the trial to be whether the name of Effie E. Robb was added to the note after its execution and delivery by the other parties, and without the knowledge or consent of defendant Wickizer. On that issue there was evidence on the part of plaintiff sufficient to sustain a finding that she was induced to sign the note at the request of Mr. Wickizer and for his own protection. Something is said by counsel as to where the burden of proof rested on that question; but, since there was sufficient evidence on the part of plaintiff to sustain that burden, the question of on whom that burden rested becomes immaterial.

The original parties to the note were Q. E. Robb and T. C. Wickizer whose names appeared on the note as makers, and Sarah Frances Pallett and R. C. J. Pallett, payees. At the time of the trial both of the Palletts and Q. E. Robb were dead. T. C. Wickizer, one of the original parties to the note, and Effie E. Robb, who signed it later, were living. Mr. Wickizer and Effie E. Robb were both offered...