Dunlap v. Kelly
| Decision Date | 01 February 1904 |
| Citation | 78 S.W. 664,105 Mo.App. 1 |
| Parties | INA M. DUNLAP, Respondent, v. JOSEPH H. KELLY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--Hon. George F. Longan, Judge.
Judgment reversed and cause remanded.
W. D Steele for appellant.
(1) The court erred in giving the peremptory instruction asked by plaintiff, but should have given the instruction asked by defendant. A general denial in an action on a promissory note by an alleged indorsee thereof puts in issue the plaintiff's title to the note and the genuineness of the indorsements. The plaintiff offered no proof of the indorsements on the back of said note and said indorsements were not read or exhibited to the jury. Worrell v Roberts, 58 Mo.App. 197; Bank v. Pennington, 42 Mo.App. 355; Mayer v. Old, 51 Mo.App. 214; Saville v. Huffstetter, 63 Mo.App. 273; Robinson v. Powers, 63 Mo.App. 290. (2) The petition alleges that plaintiff was the payee in the note sued on and endorsed said note to one W. O. Dunlap, who in turn indorsed said note back to plaintiff. Plaintiff utterly failed to prove any of said indorsements and did not prove that plaintiff was the owner of said note at the time suit was brought; all the testimony tending to prove these facts was stricken out by the court on motion of defendant's attorney. An endorsee of a negotiable promissory note must show that his purchase was made from the payee or his assignee. The indorsements on a note do not prove themselves, but must be supported by evidence aliunde. Bank v. Pennington, 42 Mo.App 355; Spears v. Bond, 79 Mo. 471, and cases cited; Mayer v. Old, 51 Mo.App. 214.
Sangree & Lamm for respondent.
(1) The plaintiff, being the original payee of the note, and having custody thereof, as holder, was entitled to recover without any proof of the indorsement by her to W. O. Dunlap, and by him back to her, and regardless of the same. She had the right to strike out said indorsements and ignore them as functus officio. (2) But, if essential to prove indorsements, they were in fact proved; for an indorsement may be proved, in the absence of objection, by oral testimony. See Moore v. Hubbard, 42 N.E. 922 (Ind. App. Feb. 11, 1896), directly in point. (3) There is a class of cases which hold that where an indorsement is material to the title of the indorsee, and same is denied, it must be proved. For example: Worrell v. Roberts, 58 Mo.App. 197; Bank v. Pennington, 42 Mo.App. 355; Mayer v. Old, 51 Mo.App. 214. But all of these cases and others of that class were cases where the notes were held by strangers to the face of the paper and hence are not in point; besides that, these cases must be read with the other class, holding that a bill payable to order will pass by mere delivery, without indorsement, subject to the infirmity of being open to all equities and defenses in favor of payor. Boeka v. Nuella, 28 Mo. 180; Bishop v. Chase, 156 Mo. 158; Weber v. Orton, 91 Mo. 677; Patterson v. Cave, 61 Mo. 439.
Plaintiff sued defendant on a negotiable promissory note and on peremptory instruction from the trial court a verdict was rendered for her.
The plaintiff was the payee in the note and the petition alleged that she transferred it in writing on the back thereof to W. O. Dunlap. That afterwards, said W. O. Dunlap transferred it in writing on the back thereof to plaintiff. That she was the legal owner of the note, etc. The answer was a general denial. At the trial plaintiff made no proof of these endorsements. Thereupon counsel for defendant made the point that plaintiff had not proven the case stated in the petition and offered a demurrer to the evidence, which the court refused, and gave a peremptory instruction to find for plaintiff.
Generally, a plaintiff should be required to prove the endorsements on the note; and should make such proof by evidence aliunde the endorsements themselves. Nat'l Bank v. Pennington, 42 Mo.App. 355; Worrell v. Roberts, 58 Mo.App. 197; Mayer v. Old, 51 Mo.App. 214; Saville v. Huffstetter, 63 Mo.App. 273; Robinson v. Powers, 63 Mo.App. 290.
But, by way of exception to the rule just stated, plaintiff contends that where the plaintiff is the payee of the note which he has parted with by endorsement and which finally comes back to him through one or more transfers, his possession thereof raises a prima facie title, which will suffice, without proof of the endorsements out of him and back to him again, unless the defendant makes a showing that he is not the owner. In this the plaintiff is right, and doubtless such view of the law guided the trial court in its action on the instructions. The law is clearly stated by the Supreme Court of the United States as follows: . . . "If any person who endorses a bill of exchange to another whether for value, or for the purpose of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more endorsements in full, subsequent to the one to him, without producing any receipt or endorsement back from either of such endorsees, whose names he may strike from the bill, or not, as he may think proper." Dugan v. United States, 16 U.S. 172, 3 Wheat. 172, 4 L.Ed. 362. The same ruling was made by our Supreme Court in Glasgow v. Switzer, 12 Mo. 395. The same statement of the law is made in 2 Daniel on Neg. Int., section 1198, and in 2 Randolph on Com'l Paper, sections 715, 716, 717, and 719.
But the point, as made by defendant, involves plaintiff's petition on which the sufficiency of the case made by her must be determined. As already stated, the plaintiff pleaded the endorsements and transfers of the note and having done so, though unnecessarily, she must prove the allegations. They can not be rejected as surplusage as suggested by plaintiff. Concerning the rule which governs what may be termed immaterial allegations and distinguishes them from mere surplusage, it is said: 1 Chitty on Pleading (p. 325), 252.
In Savage v. Smith, 2 Bl. Rep. 1101, the action was against the sheriff. The declaration stated a judgment and execution. The latter was proven but the former was not. It was held that though unnecessary to aver the judgment, yet it having been done, it should be proved.
In Bristow v. Wright, Douglas (2 pt.), 665, the action was against the sheriff for taking goods without leaving a year's rent. The...
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