Finney v. Turner

• Decision Date: 31 July 1846
• Citation: 10 Mo. 207
• Parties: FINNEY v. TURNER.
• Court: Missouri Supreme Court

10 Mo. 207

FINNEY

v.TURNER.

Supreme Court of Missouri.

July Term, 1846.

ERROR TO CARROLL CIRCUIT COURT.

TURNER, for Appellant.

ABELL, for Appellee, cited: Jeffers v. Oliver, 5 Mo. R. 433.

NAPTON, J.

This was a petition in debt on a note executed by Turner to one Major, and by Major assigned, without recourse, to the plaintiff, Finney. The defendant pleaded nil debet, and gave notice of a set-off. In this notice it was alleged that the defendant (Turner), and the payee of the note (Major), were co-partners in the carpenter's trade, and that a debt was contracted by the firm, which Turner paid, one-half of which payment the defendant claims as set-off. It was also stated that an account was due the firm of Turner & Hamner, by the said firm of Turner & Major (the defendant being a member of each firm), and this account, which had been transferred to Turner, was also sought to be used as a set-off. The plaintiff moved to strike out so much of the set-off as related to these two items, but the motion was overruled and an exception taken.

On the trial after the plaintiff had read the note and assignment, the defendant proved by Hamner, a member of the firm of Turner & Hamner, that previous to the assignment of the note sued on, the defendant and said Major were co-partners in the building of a certain house. That as such partners, they purchased and used in the building of said house a quantity of lumber, amounting in value to about $386, and that defendant paid for said lumber. The same witness proved that he and the defendant were in co-partnership, and as such, had an account against Major for about fifty dollars, which account, previous to the assignment, had been transferred by the witness to the defendant. This testimony was objected to, but admitted by the court.

The defendant then read in evidence an erased assignment of the note sued on, written on the back of said note, and bearing date previous to the assignment to the plaintiff. Across this indorsement black lines were drawn, but the writing remained legible. This was objected to, but permitted; and the court expressed an opinion in accordance with instructions to that effect, submitted by the defendant, that after a note had been assigned, it could not be transferred back to the assignor by a mere cancellation of the indorsement, and if an erasure of an assignment appears on a note, it is incumbent on the holder to explain such erasure, in a suit on the note. The plaintiff, in consequence of these opinions of the court, took a non-suit, which he afterwards moved to set aside, and the motion to set aside being overruled, he took a bill of exceptions, and has appealed to this court.

1. The first point in this case is the one presented by the instructions of the court. Allowing the first proposition of the instruction to be correct, in the abstract yet the latter part in relation to the burthen of proof, in case of an erased indorsement, is erroneous, and under the circumstances compelled the plaintiff to take a non-suit. The mere fact of an erased indorsement appearing on the face of the note, does not per se prove an actual assignment. There may have been no delivery, or the writing may have been the act of a stranger. The case of Davis v. Christy, which may have been thought to authorize the doctrine acted on by the Circuit Court, was a case in which the defendant proved that the obligee of the bond had assigned it for a valuable consideration, by a writing indorsed on the bond; that...