First Nat. Bank v. Foster
| Decision Date | 14 April 1925 |
| Docket Number | No. 18912.,18912. |
| Citation | 271 S.W. 536 |
| Parties | FIRST NAT. BANK OF CAPE GIRARDEAU v. FOSTER. |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.
"Not to be officially published."
Action by the First National Bank of Cape Girardeau against P. P. Foster. Judgment for plaintiff, and defendant appeals. Affirmed.
Spradling & Dalton, of Cape Girardeau, for appellant.
Hardesty & Limbaugh, of Cape Girardeau, for respondent.
This is an action on two promissory notes, dated the 29th day of December, 1922. One is for the sum of $2,500, the other for $614. The $614 note represents the interest due on the $2,500 note.
The petition is in the usual form, and is in two counts. Defendant admitted the execution of the notes. Then, after a general denial as to other allegations in the petition, set up by way of an affirmative defense the fact that the $2,500 note described in plaintiff's petition was a renewal note for the same amount, executed and delivered by him to the Security State Bank of Cape Girardeau, Mo.; that said note was transferred after maturity by the Security State Bank to plaintiff; that the original note to the Security State Bank was given in payment of certain shares of the capital stock of said bank, and that said bank refused to deliver to defendant his stock; that on account of such refusal the original note was without consideration and void; that, as to the note described in the second count of plaintiff's petition, or the $614 note, such was without consideration and void because the promissory note was void. Defendant further alleged that both notes were given and accepted for an illegal consideration, contrary to law and against public policy, and that said notes were therefore void and uncollectable.
The reply set up the allegations that, if defendant did not receive the bank stock, it was his own fault, because he had either failed or refused to accept the same when such was offered and tendered him; that, while the stock was in the possession of the Security State Bank, the defendant executed a waiver of notice of a stockholders' meeting of said bank to be held on July 10, 1922, and executed a proxy for the voting of his shares of stock. There are further facts set up in the reply to which it is unnecessary to refer.
This suit was filed on May 5, 1924. In November, 1919, certain persons in the vicinity of Cape Girardeau organized the Security State Bank of Cape Girardeau, Mo. Defendant was solicited to subscribe for stock in the bank, and did subscribe for 25 shares. On the 15th day of November, 1919, he gave a demand note for 25 shares of stock in said bank for the sum of $2,500. Defendant insists the note was given to the Security State Bank, while the evidence of the plaintiff is to the effect that the note was made payable to the Bank of Whitewater, and on the 17th day of November, 1919, taken to the Bank of Whitewater, deposited in said bank, and the account of Security State Bank given credit for the same. At that time the Security State Bank had not yet obtained a charter. On the 24th of November, 1919, this note was transferred from the Bank of Whitewater to the Sturdivant Bank. The Security State Bank did not open for business until May, 1920, and in June, 1920, at the request of the Sturdivant Bank, the Security State Bank took over the $2,500 note of defendant. The note was renewed after it was taken back to the Security State Bank, and an additional note for $339 interest was given. In July, 1922, the First National Bank of Cape Girardeau took over all the assets of the Security State Bank, and among them the notes of this defendant. By the terms of the agreement the First National Bank gave the stockholders of the Security State Bank stock in the National Bank for their stock. On the 29th of December, 1922, as above stated, defendant delivered to plaintiff...
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...point out the particular clause violated, the point will be ignored. State ex rel. Schuler v. Noltre, 285 S.W. 501, 503; First National Bank v. Foster, 271 S.W. 536, 537; Lohmeyer v. St. Louis Cordage Co., 113 S.W. 1108, 214 Mo. 685, 689; Consol. School Dist. G.C. v. Day, 43 S.W. (2d) 428, ......
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...point out the particular clause violated, the point will be ignored. State ex rel. Schuler v. Noltre, 285 S.W. 501, 503; First National Bank v. Foster, 271 S.W. 536, 537; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 689, 113 S.W. 1108; Consol. School Dist. G.C. v. Day, 43 S.W. (2d) 428, ......
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