Dawson v. Wombles

• Decision Date: 05 March 1907
• Citation: 100 S.W. 547,123 Mo. App. 340
• Parties: DAWSON v. WOMBLES.
• Court: Missouri Court of Appeals

100 S.W. 547

123 Mo. App. 340

DAWSON v. WOMBLES.

St. Louis Court of Appeals. Missouri.

March 5, 1907.

1. BILLS AND NOTES — ACTIONS — PRESUMPTIONS.

The presumption that a maker of a note, signed by his mark, knew the contents thereof at the time of the signing, arises in an action thereon where the execution is not denied, and it appears that the maker executed and acknowledged a deed of trust to secure the note described in the deed.

2. SAME.

The presumption that a maker of a note, signed by his mark, knew the contents thereof at the time of the signing, cannot be overcome without evidence that imposition or fraud was practiced on him to procure his signature thereto.

3. SAME — PARTY ENTITLED TO SUE — PROOF OF INDORSEMENT.

A party in possession of a negotiable note made payable to another may sue thereon without proving an actual indorsement.

4. TRIAL—INSTRUCTIONS—PRESUMPTIONS AND BURDEN OF PROOF.

An instruction in an action on a note which requires plaintiff, to succeed, to prove facts the existence of which is presumed by law from the existence of the facts shown, is erroneous because imposing on him a burden not required by law.

5. SAME—ERRORS CURED BY OTHER INSTRUCTIONS.

The error in an instruction in an action on a note, arising from the fact that it required plaintiff to prove that the maker knew the contents of the note at the time he signed it by his mark, and that he delivered the same for a valuable consideration, etc., though the law presumes the existence of such facts from the facts proved, is not cured by a charge predicating a right of recovery on facts stated in general terms, without informing the jury that the law presumes the existence of such facts.

6. APPEAL—OBJECTIONS IN TRIAL COURT— DUTY TO REQUEST INSTRUCTION.

A party in a civil action is not estopped from complaining of an erroneous instruction in behalf of his adversary, though he did not ask the giving of a correct one.

Appeal from Circuit Court, Lincoln County; Jas. D. Barnett, Judge.

Action by Jennie L. Dawson against S. D. Wombles, administrator of James R. Palmer, deceased. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Chas. Martin and Pearson & Pearson, for appellant. O. H. Avery and W. A. Dudley, for respondent.

BLAND, P. J.

The action originated in the probate court of Lincoln county, when plaintiff offered for probate against the estate of James R. Palmer, deceased, a note for the sum of $515.50, dated July 2, 1887, in which Nancy E. Palmer is payee. The note is due one day after date, with 8 per cent.

                                                      his
                interest per annum, signed, "James R. X
                                                     mark
                

Palmer," and attested by J. W. M. Palmer. On the back of the note is the following indorsement: "I sign the within note for value received to Jennie L. Palmer, this fifteenth

                                               her
                day of December, 1888. Nancy E. X Palmer
                                               mark
                

Attest: J. W. M. Palmer. I. S. Williams." The note is also indorsed: "Received on the within $22, September 5, 1893." The probate court found the issues for the defendant administrator, and plaintiff appealed. On the first trial the circuit court held J. W. M. Palmer, plaintiff's only witness, incompetent, for which ruling the judgment was reversed and the cause remanded by us. Dawson v. Wombles, 104 Mo. App. 272, 78 S. W. 823. On the second trial, the court sustained a demurrer to plaintiff's evidence. The cause was again appealed to this court, and the judgment reversed and the cause remanded for retrial. Dawson v. Wombles, 111 Mo. App. 532, 86 S. W. 271. On the third and last trial, the verdict and judgment were for defendant, from which plaintiff appealed.

John W. M. Palmer was the son of Nancy E. Palmer, the brother of James R. Palmer, deceased, and the father of plaintiff. Neither Nancy E. nor James R. Palmer were able to read or write. J. W. M. Palmer, plaintiff's only witness, testified that his mother at one time resided with him on a farm; that he left the farm and moved to Louisiana, Pike county, Mo. and his mother thereafter lived with her other son, James R. Palmer, for a number of years, on a farm in Lincoln county; that at the time she went to live with him she owned a number of cattle, which James R. was not able to keep for her, and she sold them to him on account, which account run on for several years; that James R. and his wife separated, and about the time of the separation Nancy E. Palmer became an invalid and was a great care; that witness then moved to his farm and brought his mother, Nancy E. Palmer, and plaintiff, his daughter, to the farm, and his daughter nursed and cared for the old lady until she died; that at the time he took his mother to his farm she and James R. had a settlement, and he (witness) went over their accounts at their request, and the amount he found to be due his mother was $515.50, and he wrote the note in suit for that sum, and signed James R. Palmer's name to it at his request; that James R. made his mark and witness attested it; that afterwards Nancy Palmer concluded that, as plaintiff was nursing and caring for her, plaintiff should have what she had, and gave her the note, and witness, at his mother's request, wrote the assignment on the back of the note, signed her name to it, she making her mark, and he and Williams signed it as attesting witnesses. Witness testified that the $22 credited on the note was for a load of corn and some money, and was credited on the note at the request of James R. Palmer. Witness also testified that he had the note in his possession for his mother, and, after the...