Faulkner v. Faulkner

• Court: Missouri Supreme Court
• Writing for the Court: SHERWOOD
• Citation: Faulkner v. Faulkner, 73 Mo. 327 (Mo. 1880)
• Decision Date: 31 October 1880
• Parties: FAULKNER et al., Executors, v. FAULKNER et al., Appellants.

73 Mo. 327

FAULKNER et al., Executors,

v.FAULKNER et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Phelps Circuit Court.--HON. V. B. HILL, Judge.

REVERSED.

This was a suit on a note, brought by J. D. Faulkner and C. C. Bland, as executors of R. P. Faulkner, deceased, against the same J. D. Faulkner together with D. W. Faulkner, H. M. Noel, Alex. Demuth and D. W. Malcolm. Before trial the suit was dismissed as to the defendant J. D. Faulkner. There was a judgment for plaintiffs.

Overall, Judson & Tutt for appellant Demuth.

1. The petition failed to state a cause of action in favor of the plaintiffs suing. Plaintiffs Faulkner and Bland alleged a promise made by defendants to Bland only. This is a fatal defect. Bliss Code Plead., § 414. It is not a mere misjoinder of parties. Mann v. Marsh, 21 How. Pr. 372. That plaintiffs sued “as executors,” or that the note was alleged to be payable to Bland “as executor,” is immaterial. The words are merely descriptio personae. Rittenhouse v. Ammerman, 64 Mo. 199. The fact that the note actually sued on was payable to both plaintiffs, does not obviate the objection. The petition must by its averments disclose a cause of action; it cannot be aided by exhibits filed. Curry v. Lackey, 35 Mo. 392.

2. The note was upon its face and the admitted facts, void as to all the defendants. The actual case tried, not that which the petition is made to represent, is a suit upon a note made by one of plaintiffs (who is also defendant), with his co-defendants as sureties, and the singular anomaly is presented--which, it is submitted, finds no parallel in the authorities--of a principal debtor seeking, as co-plaintiff, to exact payment of his own debt from himself and his sureties in an action at law. Upon this case we submit: (1) In contemplation of law a man can neither contract with nor sue himself. Parsons Partnership, 290; Eastman v. Wright, 6 Pick. 320; Mainwaring v. Newman, 2 Bos. & P. 124; Neale v. Turton, 4 Bing. 149; 1 Chitty Plead., (16 Am. Ed.) 63. The great embarrassment which courts of equity have experienced, in attempting to afford any relief in the case of firms with a common member, illustrates the universal recognition of the principle stated. 5 Am. Law Rev. 51; Cole v. Reynolds, 18 N. Y. 74; Rogers v. Rogers, 5 Ired. Eq. 31; 1 Story Eq. 679; Parsons on Part., 288; Grahame v. Harris, 5 Gill & J. 490; Burley v. Harris, 8 N. H. 235; Portland Bank v. Hyde, 11 Me. 198; Belknap v. Gibbens, 13 Met. 471. (2) That J. D. Faulkner assumed to contract with and sue himself, “as executor,” is wholly immaterial. Moffatt v. Van Mullingen, 2 B. & P. 124n. Neither as executor nor in any other capacity could Faulkner contract with himself; nor alone, nor jointly with his co-executor, sue himself. 6 Pick. 320; 2 Williams Executors, 912; Fitzgerald v. Boehm, 6 Moore 332. (3) There being no contract made by Faulkner, the principal, no obligation was created against the co-defendants, his sureties. Theobald on Principal and Surety, 2; Brandt on Surety, § 36; Andrus v. Chretien, 3 La. 48; Domat Civil Law, bk. 3, tit. 4, art. 2; Leckie v. Scott, 10 La. 416; Levy v. Wise, 15 La. Ann. 38. It is true that where the principal has a defense to the contract in the nature of a personal privilege or protection, such as coverture or infancy, the contract subsists, and sureties may be charged. But the cases illustrating this familiar doctrine are clearly distinguishable from those where there is no principal obligation capable of being assumed. In cases of the former class the law contemplates a principal obligation created and actually subsisting, but against which the principal enjoys a personal exemption. Brandt on Surety, §§ 11, 128. But where there is in contemplation of law, no principal and no debt, there can be no surety. Ib., § 121. In the case at bar there is no principal and no debt. Faulkner is not protected by a mere personal exemption or privilege from liability on a subsisting contract, but in contemplation of law there was no contract. There is nothing upon which the obligation of surety can rest.

3. The note was void for want of consideration as to all parties. As each of the co-executors had a several power over the assets of the estate, (1 Perry on Trusts, § 421,) the permission given Faulkner by his co-executor to collect the St. Louis note constituted no legal consideration for the note now sought to be enforced against his sureties. Assuming, therefore, that the note had been executed to Bland alone, as set out in the petition, and suit brought by Bland alone, it is clear that the right of Faulkner to collect the assets of the estate did not rest upon the permission of his co-executor, and that the granting or withholding such permission or consent could have no efficacy whatever in enlarging or lessening his lawful powers. There is no evidence of a devastavit; that Faulkner colected assets belonging to the estate affords no presumption whatever of one; the law presumes that, as he did what he had a right to do, the funds so collected were held by him for the purpose of his trust, as required by law. The fact that Bland testifies that he has “had exclusive control of all money and property belonging to the estate for two years,” cannot impair this presumption, or change the law controlling the powers of co-executors.

L. F. Parker for the other appellants.

1. The note offered in evidence was not the note sued on, and should have been excluded. Kiskaddon v. Jones, 63 Mo. 190; Buffington v. A. & P. R. R. Co., 64 Mo. 246; Edens v. H. & St. Jo. R. R. Co., 72 Mo. 212; Waldhier v. H. & St. Jo. R. R. Co., 71 Mo. 514.

2. There is no evidence of presentment, demand or notice to charge Malcolm as indorser. Diligence in these particulars is a condition precedent to plaintiffs' recovery. U. S. Bank v. Smith, 11 Wheat. 171; Sebree v. Dorr, 9 Wheat. 558; Irvine v. Withers, 1 Stewart (Ala.) 234. Neither presentment nor demand was made at the Security Bank, where the note was payable, nor is it shown whether said bank is out of business, or if still in business, whether the notary made any effort whatever to find it. The notary's certificate, not being supported by affidavit, is no evidence of notice to the indorser, (R. S., § 2320;) though it is notice of demand and refusal. R. S., § 552.

3. There is no evidence of any waiver of protest by Malcolm, and such evidence, if offered, would have been inadmissible under the pleadings. Long v. Dismer, 71 Mo. 452. Such evidence must be clear and distinct, and will be strictly construed. 1 Parsons Notes and Bills, 596; Jaccard v. Anderson, 37 Mo. 91. It would have been incompetent if offered, because no issue as to waiver was made by the pleadings. Kiskaddon v. Jones, supra; Buffington v. R. R., supra; Edens v. R. R., supra; Waldhier v. R. R., supra.

4. If the case was decided upon the theory that Malcolm was liable as maker, then he was discharged by failure to prosecute the suit against J. D. Faulkner; for he was at best security for Faulkner. R. S., §§ 3896, 3897; Peters v. Linenschmidt, 58 Mo. 464.

5. The note was given without consideration, and is void. Permission from one executor to his co-executor to collect money due the estate of which they were joint executors, is no consideration. If there be several executors they are regarded in the light of an individual person; they have a joint and entire interest in the effects of their testator. Murray v. Blatchford, 1 Wend. 583; 1 Williams on Executors, (5 Ed.) 818. And neither can recover money or property of the estate which is in the hands of the other, at law; (1 Williams on Executors, 819,) each having full power and being the absolute owner. Saunders v. Saunders, 2 Litt. (Ky.) 314. Faulkner, therefore, had the right to collect the money without the permission of his co-executor.

6. The note is also void, because it is a contract of a man with himself. 1 Pothier Obligations, 306; Bishop Contracts, 250, 251, 254, note 2.

7. A note or other security given by one executor in which he, with his co-executor, is promisee, cannot be enforced in a court of law against either the promising executor or his surety. An executor cannot sue his co-executor or one bound jointly with him in a court of law. 1 Williams Executors, 820; Fitzgerald v. Boehm, 6 Moore 332; Martin v. Martin, 13 Mo. 36; Simon v. Albright, 12 Serg. & R. 429; Steinman v. Saunderson, 14 Serg. & R. 357; Moffatt v. Van Mullingen, 2 Chitty (K. B.) 539; Quinn v. Stockton, 2 Litt. (Ky.) 343; Chandler v. Shehan, 7 Ala. (N. S.) 251.

C. C. Bland and Smith & Krauthoff for respondents.

1. The note was properly admitted in evidence. The variance, if any, could not mislead defendants. R. S., § 3565. As they failed to file the affidavit required by the statute, they cannot be heard to complain. Clements v. Maloney, 55 Mo. 352; Meyer v. Chambers, 68 Mo. 626.

2. The protest was admissible in evidence; (Wag. Stat., 598, § 50; Commercial Bank v. Barksdale, 36 Mo. 563;) at least to prove demand and refusal. Wag. Stat., 218, § 20; 2 Dan. Neg. Inst., (2 Ed.) § 959.

3. Aside from the protest, there is sufficient evidence of notice to Malcolm. ( a) In a suit by a holder against an indorser, a recovery can be had upon proof that the indorser, after the time when he was entitled to notice of protest, acknowledged his liability. Such proof is prima facie evidence of a demand and notice. 2 Dan. Neg. Inst., §§ 1147, 1152, 1156, 1157, 1162; 1 Parsons Notes and Bills, pp. 595, 596, 597, 598, 604, 605; Salisbury v. Renick, 44 Mo. 554; Story Prom. Notes, § 364. The proof in this case is, that Malcolm frequently, in conversation with plaintiff, after the maturity of the note admitted his liability. Again, his conduct in requiring Bland to bring suit is an admission that he was bound for the payment of the note, otherwise he would have had no concern with the note and no right to avail himself of the provisions of section 1, page 1302, Wagner's St...