Doering v. Saum

• Decision Date: 31 March 1874
• Citation: 56 Mo. 479
• Parties: FREDERICK DOERING, Bespondent, v. STEPHEN SAUM, et al., Appellants.
• Court: Missouri Supreme Court

56 Mo. 479

FREDERICK DOERING, Bespondent,

v.STEPHEN SAUM, et al., Appellants.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

T. G. C. Davis, for Appellant.

Geo. E. Smith, for Respondent.

VORIES, Judge, delivered the opinion of the court.

The petition in this case contained two counts, one founded on a promissory note, and the other founded on an account for interest due.

There is no question raised in this court, as to the issues tried on the second count; but the whole controversy in the case grows out of the defense set up by the defendant, Stephen Saum, to the note named in the first count. The note sued on was as follows:

St. Louis, March 1st, 1869.

Twelve months after date we promise to pay to the order of Frederick Doering one thousand dollars, for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of eight per cent. per annum.”

This note was signed at the bottom by Nicholas Saum and Dieckmann, and the name of the defendant Stephen Saum was written across the back of the note.

The pleadings are prolix, but no question is made on the pleadings, and none is made in reference to any defense set up in the case except the defenses set up in the separate answer of Stephen Saum.

The defenses relied on by Stephen Saum are, first, that he did not execute the note sued on as maker of the note, but that he only wrote his name on the note as an indorser for the commodation of the other defendant's, and second, that the note was altered by the plaintiff in a material matter after defendant had indorsed the same, without the consent of said defendant, and that the note was therefore void as to him.

The issues were framed on this answer, and a trial was had before a jury and the issues found for the plaintiff. At the close of the evidence the court fully instructed the jury upon the issues to be tried, neither party objecting to any of the instructions, and no instructions were refused by the court. After the verdict was found the defendant filed a motion for a new trial on the ground that the jury had disregarded the instructions of the court, and had found their verdict against the evidence, and wholly without and in disregard of the evidence.

The Circuit Court at Special Term overruled this motion and the defendants appealed to General Term where the judgment was affirmed; from which last judgment the defendants appealed to this court.

No point is made in this court as to the first issue made in the answer; but it is insisted here that the jury found for the plaintiff on the second issue, not only against the weight of the evidence, but in direct opposition to all of the evidence in the case, and that the court therefore erred in overruling the defendant's motion for a new trial, and that the judgment ought to be reversed. This court has...