Fifty-Third National Bank of Cincinnati v. McCrory

• Decision Date: 03 June 1912
• Citation: 148 S.W. 207,164 Mo.App. 144
• Parties: FIFTY-THIRD NATIONAL BANK OF CINCINNATI, Appellant, v. PHIL H. McCRORY et al., Respondents
• Court: Kansas Court of Appeals

148 S.W. 207

164 Mo.App. 144

FIFTY-THIRD NATIONAL BANK OF CINCINNATI, Appellant, v. PHIL H. McCRORY et al., Respondents

Court of Appeals of Missouri, Kansas City

June 3, 1912

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Judgment affirmed.

Ellis Cook & Barnett for appellant.

The plaintiff by production of the notes and proof of the indorsements made a prima facie case without even the evidence of J. H. Youtsey.Ashbrook v. Letcher,41 Mo.App. 369.Hearsay evidence is incompetent to establish any specific fact which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge.Choutian v. Searcy,8 Mo. 733;Allen v. Transit Co.,183 Mo. 411;Wood v. Hicks,36 Mo. 326;Bates v. Forcht,89 Mo. 121;Bloom's Son Co v. Maas,130 Mo.App. 122;Morris v. Parry,110 Mo.App. 675;Lynch v. Railroad, 208 Mo. 1.

Lowrence & Casey and W. W. Calvin for respondents.

(1) If the September and April notes were transferred to appellant after their maturity, then appellant was not entitled to a recovery thereon, except for the difference between the amount thereof and the amount of the Purtill & Fine notes and, this would be true even though appellant knew nothing of the credits to which respondents were entitled thereon.Wheeler v. Barrett,20 Mo. 573;Mattoon v McDaniel,34 Mo. 140;Arnot v. Woodburn,35 Mo. 99;Cutler v. Cook,77 Mo. 388;Barnes v. Mullins,78 Mo. 269;Henley v. Holzer,19 Mo.App. 245;Gemmell v. Huben,71 Mo.App. 295, 46 L.R.A. 788n.(2) It was shown that Haas was the authorized agent of the distillers, and that during the course of his transactions and negotiations with the defendants, respondents, he was acting as such agent, and, there being no showing when such agency was terminated, or that defendants, respondents, had any knowledge of such termination, it would be presumed that such agency was existing at the time he made the alleged declaration to defendants, respondents; and such declarations, therefore, as it was shown he made to the defendants, respondents, were properly admissible.McDermott v. Railroad,73 Mo. 516;Aldridge, Admr. v. E. T. C. Co.,78 Mo. 559;Chillicothe v. Raynard,80 Mo. 185;Bergerman v. Railroad,104 Mo. 77;Barker v. Railroad,126 Mo. 143;Williams v. Williamson,28 N.C. 281, 45 Am. Dec. 494;Bank v. Navigation Co.,33 Am. Dec. 687.(3) It is conceded that the ground upon which the court granted a new trial was that the verdict and judgment were against the weight of the evidence; and such action by the trial court will not, therefore, be reviewed upon appeal.Hewitt v. Steele,118 Mo. 463;Bank v. Wood,124 Mo. 72;Herndon v. Louis,175 Mo. 116;Mining Co. v. Webster, 193 Mo. 351.

OPINION

ELLISON, J.

This action is based on a petition in four counts, each on a promissory note of $ 160.67.There was a verdict, substantially by agreement, for two of the notes, and also a verdict, after contest, on the other two.Defendants filed a motion for new trial, which was sustained by the trial court on the ground, as counsel for either side agree, that the verdict was against the weight of the evidence; and plaintiff appealed from that order.

It appears that on April 4, 1908, the "Combined Distillers of Kentucky," through their agent Haas, sold to defendants in Kansas City, Mo., ninety barrels of whiskey, for $ 2249.41, for which sum the latter executed their fourteen promissory notes of $ 160.67 each.

It was a part of the agreement of the sale that if defendants sold to some other dealer a part of the whiskey, and took notes for the purchase price, such notes were to be made payable direct to the distiller and defendants were to be credited with the amount of them on their notes.Afterwards defendants sold ten barrels of the whiskey to Purtill & Fine, for $ 307.45, and took their notes payable monthly, for $ 30.75 each, which they turned over to the Combined Distillery Company as agreed, for credit on their notes, and were informed by the company that the credit had been given.This credit, after allowing for payments defendants made, would pay and discharge the two notes in controversy, unless the following consideration prevents it.

The Distillers Company became insolvent and plaintiff claims to have received the notes from the company as collateral security for loans, in due course, for value, before maturity, without notice of payment or of the arrangement between defendants and the company.That was the sole issue in the trial court.There was evidence in plaintiff's behalf tending to prove its claim that it was an innocent purchaser for value, without notice; and it insists that there was no evidence to the contrary; and that therefore the trial court erred in granting a new trial on the ground that the verdict was against the weight of the evidence.

When a trial court grants a new trial for the reason that the verdict is against the weight of the evidence, and there is any substantial evidence in favor of the party to whom the new trial is granted, that court is within the limit of its discretion and no interference will be made in an appellate court.[Hewitt v. Steele,118 Mo. 463, 24 S.W. 440;First Nat. Bank v. Wood,124 Mo. 72, 27 S.W. 554;Herndon v. Lewis,175 Mo. 116, 74 S.W. 976;Met. L. & Z. Mining Co. v. Webster,193 Mo. 351, 92 S.W. 79;Ordelheide v. Land Co.,208 Mo. 239, 106 S.W. 620;Smoot v. Kansas City,194 Mo. 513, 92 S.W. 363;Secrist v. Eubank,104 Mo.App. 113, 78 S.W. 315;Sharp v. Odom,121 Mo.App. 565, 97 S.W. 225.]

We think there was evidence supporting the order of the court under the rule we have just stated.Much of the testimony was introductory--leading down to the main issue and explanatory...