Farmers' State Bank v. Miller

• Decision Date: 07 April 1930
• Docket Number: No. 16707.,16707.
• Citation: 26 S.W.2d 863
• Parties: FARMERS' STATE BANK v. MILLER.
• Court: Missouri Court of Appeals

26 S.W.2d 863

FARMERS' STATE BANK v. MILLER.

No. 16707.

Kansas City Court of Appeals. Missouri.

April 7, 1930.

Appeal from Circuit Court, Buchanan County; Eugene Silverman, Judge.

"Not to be officially published."

Action by the Farmers' State Bank against G. L. Miller. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

See also 300 S. W. 834.

Terrence Riley, of Platte City, and Roscoe P. Conkling, of St. Joseph, for appellant.

James H. Hull, of Platte City, and John G. Parkinson, of St. Joseph, for respondent.

BLAND, J.

This is a suit on a promissory note in the sum of $1500.00. There was a verdict and judgment in favor of defendant and plaintiff has appealed. The note was dated May 23rd, 1921 and was due one year after date. It was executed by the defendant as maker, made payable to "Roberts-Mitchell Company" and was given for the purchase price of certain shares of common and preferred stock in the E. J. Hunter Company. The note bore the following indorsement on the back: "Roberts-Mitchell Company by Paul L. Mitchell." The sale of the stock was made to the defendant by one Paul L. Mitchell who was the agent of the said E. J. Hunter Company in selling the stock.

On July 15th, 1921, Paul L. Mitchell executed and delivered his promissory note for $1500 to the Platte County Bank of Farrell-view, payable 90 days after date. On October 22nd, 1921, the Platte County Bank of Farrell-view was taken over by the plaintiff. Shortly thereafter the plaintiff procured from said Paul L. Mitchell, in the latter's office in Kansas City, the note of the defendant sued upon, as additional security for the note of the said Mitchell made to the Platte County Bank of Farrellview.

The petition alleges that plaintiff was the owner of the note by endorsement from Roberts-Mitchell Company. The answer, which was unverified, denied that plaintiff was the legal owner and holder of the note or that it had any right, title or interest in it, and set up certain matters alleged as constituting fraud in the procurement of the note and failure of consideration. It is unnecessary to detail herein those allegations.

Plaintiff put upon the stand two witnesses, James L. Miller and David Hope, who testified to the effect that Paul L. Mitchell endorsed the name of Roberts-Mitchell upon the note; that Paul L. Mitchell was a broker in Kansas City engaged under the name of Roberts-Mitchell Company in selling the stock of the E. J. Hunter Company. In other words this testimony tended to show that Paul L. Mitchell was the Roberts-Mitchell Company; that Paul L. Mitchell was the person who sold the stock to the defendant and received from the defendant the latter's note, which is the one in suit.

At the close of plaintiff's testimony it offered an instruction directing the jury to find for it, which the court refused. Defendant introduced no testimony. Under the circumstances plaintiff insists that the court erred in failing to give its instruction directing a verdict for it. From the instructions offered in behalf of each of the parties it would appear that the contest was mainly over the question as to whether the note was duly endorsed by the payee to the plaintiff, in other words whether Roberts-Mitchell Company was the trade name under which Paul L. Mitchell operated or whether Paul L. Mitchell had authority to endorse the name of Roberts-Mitchell upon the note.

The following instruction was given on the part of the plaintiff:

"The court instructs the jury that if you find and believe from the evidence that the note sued upon in this case and introduced in evidence was prior to the 23rd day of May, 1922, endorsed by the payee of said note and delivered to the plaintiff, then you must find for the plaintiff for such sum as the jury may find is due upon the note of Paul L. Mitchell introduced in evidence."

At the request of the defendant the court gave the following instructions:

"The court instructs the jury that the burden of proof is upon the plaintiff to prove each and every fact necessary to recovery by the plaintiff, under the instructions of the court, by the preponderance or greater weight of the evidence, to your reasonable satisfaction, and, if the jury find the evidence is equally balanced, and does not preponderate in favor of either party, then your verdict will be for the defendant."

"The court instructs the jury that before you can find a verdict for the plaintiff, it must prove to your reasonable satisfaction, by the preponderance or greater weight of the evidence, that the Roberts-Mitchell Company was a trade-name under which Paul L. Mitchell operated, or did business, or that Paul L. Mitchell had authority to endorse the note for the Roberts-Mitchell Company, and unless it has done so, your verdict will be for the defendant."

It is insisted by the plaintiff that it made out a prima facie case of endorsement to and ownership of the note in it; that the burden of proof shifted to the defendant and the latter, not having put in any testimony, the court should have directed a verdict for plaintiff. On the other hand defendant insists that the allegations of the petition in relation to the endorsement of the note and its ownership by plaintiff were denied by the answer; that as plaintiff's evidence consisted, at least in part, of oral testimony and although this testimony tended to sustain the issues on the part of plaintiff, defendant was entitled to have the jury pass upon the credibility of the witnesses, though he offered no evidence whatever.

It is apparent that the plaintiff tried the case on the theory now advanced by the defendant and it is now estopped from claiming that the matter was not one for the jury. This is made evident by the fact that after overruling plaintiff's demurrer the court gave to the jury at the request of plaintiff the instruction which we have set out above which was inconsistent with its theory evidenced by the offering of its demurrer to the evidence. The theory advanced by plaintiff in its given instruction was that the question of endorsement of the note was one for the jury, and the offering of this instruction constituted an abandonment by plaintiff of the theory advanced by the request for its peremptory instruction. Everhart v. Bryson, 244 Mo. 507, 149 S. W. 307; Union Station Bank of St. Louis v. Wangler (Mo. App.) 254 S. W. 739; Thomas v. Boatright (Mo. App.) 245 S. W. 211; Creek v. Railroad Co., 293 Mo. 541, 240 S. W. 128; Blair Horse & Mule Co. v. Hatfield, 175 Mo. App. 296, 162 S. W. 319; Kincaid v. Estes, 218 Mo. App. 109, 262 S. W. 399.

However, plaintiff contends that the court erred in giving defendant's instructions A and B. In this connection plaintiff again urges that these instructions "totally eliminate any presumptions that are in favor of plaintiff." In this connection plaintiff again urges that the matter of the endorsement of the note which, of course, includes the authority of Paul L. Mitchell to endorse it, was not entirely a matter for the jury. Plaintiff having tried the case upon the theory that these matters were for the jury it is estopped to now claim that they should not have been left to the jury. Under the theory upon which the case was tried plaintiff must have known at least as much as is submitted in defendant's instruction B regardless of what presumptions he might otherwise have been entitled to.

It is claimed that the use of the words "under the instructions of the court" in defendant's instruction A is misleading, because the jury could have gotten the wrong impression of the issues on account of something that was said by defendant's counsel in the opening statement to the jury. There is no merit in this contention. The instruction is not subject to the criticism that it left to the jury to determine what were the facts necessary for plaintiff to recover. The instruction was merely upon the burden of proof and refers the jury to the other instructions of the court as to the issues in a manner we think the jury would not misunderstand.

Complaint is made of the giving by the court of defendant's instruction D which was the usual instruction on "credibility of the witnesses." We think that this instruction should not have been given. Severe criticism has been made by some courts of the giving of such an instruction under any circumstances, as it tends to suggest to the jury that the court is of the opinion that some witness has testified falsely. The rule in this state is that this sort of an instruction should not be given unless there is some basis for it, and even when there is such, the giving or refusal of the instruction is largely a matter of discretion of the trial court. Sampson v. Railroad Co., 156 Mo. App. 419, 425, 138 S. W. 98; Dawson & Lyon v. Flinton, 195 Mo. App. 75, 80, 190 S. W. 972; State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54; McCormick v. City of Monroe, 64 Mo. App. 197, 202; Beasley v. Jefferson Bank, 114 Mo. App. 406, 89 S. W. 1040. There is no basis for such an instruction "unless it is quite evident that material contradictory testimony has been given" (Henry v. Wabash Western Ry. Co., 109 Mo. 488, 495, 19 S. W. 239, 241), or there is something in the case indicating a wilful effort to misrepresent or suppress a material fact (Keeline v. Sealy et al., 257 Mo. 498, 528, 165 S. W. 1088; Conley v. K. C. Rys. Co. [Mo. App.] 259 S. W. 153, 155). There is no contradictory testimony shown in the record nor is there anything indicating a wilful effort to misrepresent or suppress a material fact.

Defendant insists that the...