Eaves v. Keeton
| Citation | 193 S.W. 629,196 Mo.App. 424 |
| Parties | J. P. EAVES, Respondent, v. J. W. KEETON, Appellant |
| Decision Date | 23 June 1917 |
| Court | Missouri Court of Appeals |
Appeal from Dent County Circuit Court.--Hon. L. B. Woodside, Judge.
AFFIRMED.
Judgment affirmed.
G. C Dalton and W. P. Elmer for appellant.
Lorts & Breuer for respondent.
This suit on a promissory note involves the right of the holder to have judgment against the appealing defendant, J. W. Keeton, as endorser. When we speak of defendant we mean J. W. Keeton, unless otherwise indicated. The record discloses that one Claud Wood is the maker of the note and Joseph E. Burgess is the payee. Such payee sold or traded the note to W. R. Keeton for a team of mules at or about the time of its date and endorsed the same in blank by writing his name on the back of such note. Shortly thereafter the defendant, J. W. Keeton, father of W. R. Keeton, having the note in his possession, offered it for sale to the plaintiff, who, after some investigation, agreed to buy it at a discount sufficient to make the interest equal eight per cent. instead of seven per cent., as specified in the note. The plaintiff testified that he agreed to buy the note on condition that both J. W. and W. R. Keeton endorse it and that thereupon J. W. Keeton first endorsed the name of W. R. Keeton under that of Burgess on the back of the note and then endorsed his own name under that of both such parties. The defendant, J. W. Keeton, says that his son, W. R. Keeton, had already endorsed the note and sent it to him to sell to plaintiff. Defendant cannot object to our accepting his statement as being correct. He, however, claims that he was acting merely as agent for his son in selling the note and endorsed it at plaintiff's request merely to show from whom plaintiff obtained the note. In any event J. W. Keeton wrote his name across the back of the note under and after the other endorsers' names were written thereon. He then delivered the note to plaintiff and plaintiff paid him the purchase price. It also clearly appears that plaintiff deducted from the price of the note a sum sufficient to make the interest equal eight per cent.
A part payment was made on the note by someone other than defendant and the balance not being paid when due, the plaintiff's evidence shows that he caused the same to be presented for payment at the bank where the note was made payable and payment was refused; that he caused notice of the dishonor to be mailed to the endorsers and had the note formally protested. Plaintiff's proof of these facts consisted of the notary's certificate of protest which was offered and received in evidence. Our statute section 6329, Revised Statutes 1909, makes such certificate prima-facie evidence of the facts therein stated as to demand and refusal of payment and notice of dishonor to the parties to the note. [Faulkner v. Faulkner, 73 Mo. 327.] While the Negotiable Instruments Act (section 10088, Revised Statutes 1909), provides that formal protest by a notary, or other officer, of the dishonor of any negotiable instrument, other than a foreign bill of exchange, is not required, yet same may be protested for non-payment and when so protested, the notary's certificate is admissible and constitutes prima-facie evidence. Proof of demand and refusal of payment and notice of dishonor are necessary to fix the liability of endorsers. [Secs. 10053 and 10059, R. S. 1909; Nevius v. Moore, 221 Mo. 330, 353, 120 S.W. 43.] The demand of payment and notice of dishonor may be performed by anyone and the proof thereof be made by oral or any competent evidence regardless of any formal protest. The point made is that only when protest is required is the notary's certificate receivable in evidence as such proof. This, however, is not tenable. Section 6329, supra, has no such limitation but applies to all cases where notes are in fact protested. [First National Bank v. Hatch, 73 Mo. 13, 22.]
The statute last mentioned requires that such notary's certificate, in order to be receivable in evidence, must be filed in the cause fifteen days before the trial. This cause originated in a justice court and such certificate was first filed in the circuit court after the appeal to that court. It is suggested that in order to comply with the statute such certificate must have been filed in the justice court before trial there. The trial in the circuit court, however, is de novo and as this requirement relates merely to the competency of the evidence when offered and is merely to give the opposite party an opportunity to inquire into the truth of the facts, no argument is necessary to refute this contention. [First National Bank v. Korn, 179 S.W. 721.]
Certain criticisms of the notary's certificate as being deficient in certain particulars are noted, but we find same to be without merit and merely refer to Pier v. Heinrichshoffen, 67 Mo. 163; Rolla Bank v. Pezoldt, 95 Mo.App. 404, 411, 69 S.W. 51.
In rebuttal of the prima-facie case made by the notary's certificate, the defendant testified that no notice of the note's dishonor was received by him. It was shown, however, that soon thereafter he wrote to the notary who sent out the notice asking him to see plaintiff and get him not to sue but to indulge the parties longer for the reason that he, defendant, did not want to have to pay it; that plaintiff ought to do this for him. All that the law requires is that the notice, properly addressed, be mailed to the party entitled to receive it and any failure of the mail to deliver same makes no difference. [Sec. 10075, R. S. 1909; First National Bank v. Korn, 179 S.W. 721.] Under the instructions given, the jury were required to find and did find that notice of the note's dishonor was mailed to defendant at his proper post office address and such finding is conclusive.
The defendant insists that his and W. R. Keeton's endorsements were made at the same time and for the same purpose and therefore they must be considered joint endorsers. This ignores the positive testimony of defendant himself that his son, W. R. Keeton, had previously endorsed the note in blank and delivered it to him to negotiate and that his own endorsement was made on delivering the note to plaintiff. Moreover, we have a statute fixing the prima-facie liability of endorsers in the order in which they endorsed. [Sec. 10038, R. S. 1909.] Such was the law also before the adoption of the Negotiable Instruments Act in the absence of a contract to the contrary. [McNeilly v. Patchin, 23 Mo. 40; McCune v. Belt, 45 Mo. 174.]
The defendant's real claim, however, is not that by contract with each other he and his son, W. R. Keeton, were to be joint endorsers, but that he was not to incur any liability whatever, being merely agent for his son. Such, however, is not his written contract, since he signed this note as an endorser without indicating his intention not to be so bound. Section 10033, Revised Statutes 1909, provides: "A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity." This statute declares the legal effect of such blank endorsement and such effect cannot be changed or varied by parol evidence. [First Nat. Bank v. Korn, 179 S.W. 721, and cases cited; Houser v. Fayssoux (N. C.), 83 S.E. 692.]
But granting that the two Keetons are joint endorsers of this note, such fact would not aid this...
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