Edling-Adcock Real Estate Co. v. Thompson
| Decision Date | 13 February 1911 |
| Citation | 134 S.W. 681,153 Mo.App. 543 |
| Parties | EDLING-ADCOCK REAL ESTATE COMPANY, Appellant, v. C. A. THOMPSON and FLORA E. THOMPSON, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.
Reversed and remanded.
C. A Edling for appellant.
This is a simple action on a promissory note between the original payee and payors and is governed by the law merchant; the contract, the note sued on, was plain and unambiguous in its terms. It is a complete contract in all its terms. Plaintiff is not bound to make affirmative proof of a breach of any legal duty. Under the statute the production of the note in evidence when its execution is not denied, makes a prima facie case. A promissory note is given for value received this is signed by the makers and is an admission on their part that value has been received for it, which is good consideration. It is produced by the holder and is proof that after being signed it was delivered to the promisee and is therefore evidence of a contract on good consideration between the promisor and promisee under the promisor's hand. If then on the trial when a note is sued on by the promisee against the promisor, the plaintiff produces the note and the signature is admitted or proved, it has made out a prima facie case and has no occasion to go further until the contrary is shown. The burden of proof is upon the defendants to establish by a proponderance of the evidence the failure or lack of consideration. Holmes v. Harris, 97 Mo.App. 365.
W. W. Calvin for respondents.
(1) Where an agent or broker attempts to represent both parties to a transaction; and charges, exacts or agrees to receive a commission or brokerage from each of them on account thereof, he will be denied a recovery in an action against either, for such commission or brokerage, unless it be shown that both parties to the transaction had full knowledge or were aware of the dual relation of such agent or broker, and consented thereto. Chapman v. Currie, 51 Mo.App. 44; Atlee v. Fink, 175 Mo. 104; Rosenthal v. Drake, 82 Mo.App. 358; McLuer v. Ulman, 102 Mo.App. 703; Meacham on Agency, sec. 972; Atterbury v. Hopkins, 122 Mo.App. 172; Owens v. Matthews, 123 Mo.App. 463; Winter v. Carey, 127 Mo.App. 601; Corder v. O'Neil, 207 Mo. 632; Dennison v. Gault, 132 Mo.App. 301. (2) Where, in an action by such agent or broker against either party to such a transaction, it is admitted by him that he had received or agreed to receive a commission or brokerage from each of the parties to such transaction, the burden of proof was then cast upon him to show that both of said parties knew of his double agency and that the transaction was consummated with such knowledge on their part. Dennison v. Gault, supra, and other cases supra.
This is a suit to recover on a promissory note executed by defendants and payable to plaintiff, dated June 25, 1908, due in thirty days after date.
The defendants resisted payment on the ground that it was without consideration.
The facts disclosed by the evidence are that plaintiff while engaged as a real estate broker acted as agent for the defendant, C. A. Thompson, in procuring an exchange of his property for that of a man of the name of Doty, and it is also admitted by plaintiff at the same time that he was the agent also of said Doty. After the exchange had been made, J T. Edling, plaintif...
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