Easton-Taylor Trust Co. v. Loker

• Decision Date: 12 July 1918
• Docket Number: No. 15139.,15139.
• Parties: EASTON-TAYLOR TRUST CO. v. LOKER et al.
• Court: Missouri Court of Appeals

205 S.W. 87

EASTON-TAYLOR TRUST CO. v. LOKER et al.

No. 15139.

St. Louis Court of Appeals. Missouri.

July 12, 1918.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

"Not to be officially published."

Action by the Easton-Taylor Trust Company against David C. Loker and Marie Louise Loker. Judgment for plaintiff against David C. Loker and for Marie Louise Loker, and plaintiff appeals. Reversed and remanded.

George P. Dougherty and C. R. Hamilton, both of St. Louis, for appellant. Douglas W. Robert, of St. Louis, for respondent.

ALLEN, J.

This is an action upon a note for the sum of $900, of date July 8, 1913, executed by the defendant David C. Loker to the order of defendant Marie Louise Loker, payable 30 days after date, and which was indorsed by the defendant Marie Louise Loker and delivered to plaintiff trust company.

The petition is in the ordinary form. The answer of defendant David C. Loker is a general denial. The answer of defendant Marie Louise Laker is a general denial followed by a plea setting up matters alleged to constitute fraud on the part of the defendant David C. Loker in obtaining her indorsement on the note, of which fraud, it is alleged, plaintiff, through its agents and. servants, was aware, and of which it took advantage.

The trial before the court and a jury, resulted in a verdict and judgment in favor of plaintiff, for the amount of the note and accrued interest, against the defendant David C. Loker, and in favor of the defendant Marie Louise Loker. From this judgment the plaintiff prosecutes this appeal.

The defendants are cousins. The evidence discloses that on or about October 17, 1911, defendant David C. Loker executed a note for $1,000 payable to his uncle George H. Loker, due 90 days after date, which was thereupon indorsed by George H. Loker and was discounted at the plaintiff trust company; the money realized thereon being paid to defendant David C. Loker. Shortly prior to the maturity of that note George H. Loker died. The note remained unpaic., and on January 17, 1912, it was paid by the delivery to the trust company of another note, for the same amount, executed by the defendant Davie: C. Laker to the order of the defendant Marie Louise Loker and indorsed by the latter. Thereafter certain "renewal notes," executed and indorsed in like manner, were delivered, from time to time, to plaintiff, and at the time of one of these renewals $100 was paid plaintiff, reducing the sum originally loaned to $900. Finally, on July 8, 1913, the note in suit was executed and delivered as aforesaid.

The evidence shows that in the last will and testament of George H. Laker, uncle of these defendants, defendant David C. Loker was named as executor, and that therein the defendant Marie Louise Loker, niece of said defendant, was the principal beneficiary. According to the testimony of Marie Loker, her codefendant, David Loker, transacted all of her business during the years 1911, 1912, and 1913; that she was inexperienced in business affairs and had great confidence in her codefendant; that about a week after the death of her uncle she learned. of the note signed by David Loker and indorsed by her uncle which had not been paid. She testified that David. Loker told her that a new note would have to be executed, and that she would have to indorse it, as her uncle had indorsed the prior note, because of the fact that she was the principal beneficiary under his will. It appears she agreed to do so, and that the defendants went together to the office of plaintiff trust company, and there conferred with an officer of the trust company, being also its counsel. According to the testimony of Marie Loker, David Loker, in the presence of plaintiff's said representative, stated that it was necessary for her to indorse a new note, for the reason stated above. When asked as to what this conversation was, she said:

"That I had to sign this note because my uncle had indorsed it, because my uncle had given the first note, that my uncle had left me everything, that I had to do it, that was the way I understood it. I had to do it."

This defendant further testified that questions were asked her by plaintiff's representative regarding her property, a id that she signed a paper, without reading it, purporting to be a list of her property; the data therefor having been furnished to plaintiff by said David Loker. Plaintiff's said representative, testifying as plaintiff's witness, denied that any statement was made by David Loker or any other person in his presence to the effect that defendant Marie Loker was obligated to sign or indorse the note because she was chief beneficiary in her uncle's will, and stated that Marie Loker said that she wanted her uncle's debts paid and that this was the reason why she was there to indorse the note.

Though the evidence shows, without contradiction, that David Loker "had no substantial financial worth," and that the original note, signed by David Loker to the order Of George H. Loker and indorsed by the latter, was executed "on the financial credit" of George H. Loker, for the benefit of David Loker, who received the proceeds, the record discloses that after the death of George H. Loker David Laker presented a claim against his said uncle's estate upon the theory that he signed the note for the accommodation of his uncle, and that he had been forced to pay the same. It appears that this claim was allowed by the probate court, and that thereafter it was assigned to the plaintiff trust company as collateral security for the payment of the loan still due it. The testimony of plaintiff's said witness, however, is to the effect that David Loker, without request, delivered this assigned claim to plaintiff's cashier, who took it and put it in the company's files, and that on the following day the witness took it from "the ban K," kept it thereafter in his possession, and offered it to David Loker, who did not take it. Judged by the evidence in the record, this claim of David Loker against his uncle's estate was wholly fraudulent. But the matter is not one in issue here. Though present at the trial of this case, David Loker did not testify.

By an instruction offered by defendant Marie Loker the court submitted to the jury the issue of fraud set up in the answer of that defendant, predicated upon her testimony in regard to what occurred at...