Fenn v. Dugdale

• Decision Date: 31 March 1867
• Citation: 40 Mo. 63
• Parties: WILLIAM P. FENN, Appellant, v. JOSEPH DUGDALE, ADM'R, Respondent.
• Court: Missouri Supreme Court

40 Mo. 63

WILLIAM P. FENN, Appellant,

v.JOSEPH DUGDALE, ADM'R, Respondent.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Cline & Jamison, for appellant.

Garesche, for respondent.

FAGG, Judge, delivered the opinion of the court.

This was a proceeding instituted originally in the Probate Court of St. Louis county upon an account presented by the appellant Fenn against the estate of Francis Dugdale, deceased, for money paid to the use of decedent, upon a note executed by Dugdale and upon which plaintiff was alleged to be an accommodation endorser. The note had been negotiated at the banking-house of Lucas, Simonds & Co., and after maturity a judgment had been obtained against Fenn, which was fully paid off and discharged by him. The amount of the judgment with interest thereon, together with the costs of suit, was the amount of the allowance asked for. The demand being allowed, an appeal was taken to the Circuit Court of St. Louis county, where plaintiff recovered the amount of the judgment and interest but not the costs. Upon an appeal taken to this court and determined at the March term, 1862, the judgment was reversed and the cause remanded, with leave to the plaintiff Fenn to amend his notice of demand so as to show that the same was founded upon the note in question which he had re-acquired of Lucas, Simonds & Co., and of which he was then the legal holder. The amendment was made in conformity with the opinion of the court (31 Mo. 580), and a trial had, which resulted in a verdict and judgment for the defendant, and the case is here upon an appeal taken by the plaintiff. There was a manifest misdirection of the jury by the instructions of the court. There were only two witnesses examined. The first was introduced upon the part of the plaintiff to prove that the note sued upon was executed by Francis Dugdale, deceased, and that the plaintiff and witness were mere accommodation endorsers; that it had been negotiated for the exclusive benefit of Dugdale, and that a judgment had been obtained by the holders against Fenn, which had been paid by him. The other witness was introduced by the defendant for the alleged purpose of impeaching the witness of plaintiff. Without stopping to inquire whether the ground was properly laid for this purpose, we proceed to notice the character of the testimony given by the last witness, and the declarations of law made by the court. This witness stated substantially that she was the widow of Dugdale, and was the administratrix of his estate until the date of her subsequent marriage with one Farrell; that about the time of the maturity of the note she received notice of its protest, and immediately called upon the witness of plaintiff, and was informed by him that it was a matter about which she need not trouble herself, and that plaintiff and himself were obliged to take it up and would do so. It was shown by the testimony in the case that plaintiff was the president and the first witness (Hunt) secretary of the ...