First Nat. Bank v. Wells

• Decision Date: 02 March 1903
• Citation: 98 Mo. App. 573,73 S.W. 293
• Court: Missouri Court of Appeals
• Parties: FIRST NAT. BANK OF MILAN v. WELLS et al.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 293

98 Mo. App. 573

FIRST NAT. BANK OF MILAN v. WELLS et al.^*

Court of Appeals at Kansas City, Missouri.

March 2, 1903.

NEGOTIABLE INSTRUMENT—SURETY—WAIVER OF NOTICE—VERBAL AGREEMENT—ACCEPTANCE OF RENEWAL—HARMLESS ERROR.

1. Where, on an appeal from a judgment on a note, the record does not disclose that it was offered in evidence, or that a ruling that, under the pleadings, such offer was unnecessary, was made to settle a contention as to who was to have the opening and closing arguments, but it shows that defendants, in their answer, admitted the execution of the note, and pleaded matters in bar and avoidance, the defendants are not in a position to complain of the above-mentioned ruling of the court.

2. In the absence of a showing, it will not be presumed that the holder of a note surrendered it for a renewal note before it was signed by the only solvent surety on the old note.

3. A verbal agreement by a payee of a note with a surety, made prior to its execution, that the note is to be collected at maturity, is merged in a stipulation in the note waiving notice of protest and extension of time, so that the surety cannot complain of an extension given without notice to him.

4. Where a note contained a stipulation waiving notice to the sureties of an extension of time, a subsequent verbal agreement, without consideration, that no extension is to be given, will not be upheld.

5. A stipulation in a note waiving notice of extension of time is binding on the sureties.

6. Where the custom of country banks is to permit the maker of a note, in negotiating an extension, to sign a renewal note, pay the interest thereon, and leave it with the bank, to be accepted when the sureties on the old note have signed it as of the day it is dated, the law will not imply an acceptance of the renewal note before it is signed by the sureties.

Appeal from Circuit Court, Sullivan County; Samuel Davis, Special Judge.

Action by the First National Bank of Milan against Elijah Wells and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Childers Bros., for appellants. J. M. Winters and Wattenbarger & Bingham, for respondent.

SMITH, P. J.

This is an action on a promissory note for $3,000. The answer admitted the execution and delivery of the said note, and then pleaded several special defenses to the action thereon.

It appears from the bill of exceptions that at the inception of the trial, which was to a jury, the court held "that, under the pleadings, it was not necessary for plaintiff to offer in evidence the note." Why or what was the occasion for this holding, is not disclosed. The plaintiff seems not to have offered the note in evidence, and, so far as we can discover, there was nothing then before the court requiring any ruling of that kind. Most generally in the trial of such cases the plaintiff will offer to give in evidence the note, the execution of which stands admitted by the answer, to the end that he may open and conclude the argument to the jury. Where, however, the answer, as here, admits the execution of the note, and pleads one or more defenses in bar or avoidance, the burden of proof rests on the defendant, who by reason of that fact becomes entitled to the right to open and close the argument. But it does not appear from the bill of exceptions that the ruling of the court was made to settle any contention of that sort in this case. If the court, on its own motion, and in advance of any necessity or occasion therefor, made the announcement already referred to, and the plaintiff, in conforming to the ruling of the court so made, did not introduce the note in evidence, we are unable to see that the defendants were prejudiced thereby. The answer had admitted every fact constitutive of the plaintiff's cause of action, so that there was no fact which plaintiff was required to prove to make out his prima facie case. The introduction of the note in evidence was not required for that purpose. We are expressly forbidden by the statute to reverse a judgment because of any error committed by a court during the progress of the trial before it, unless such error be prejudicial on the merits. Section 865, Rev. St. 1899. The effect of the alleged ruling resulted more to the advantage of the defendants than to their disadvantage, and so there is no just ground for complaint on that account.

One of the defenses pleaded by the separate answer of defendant John D. Crumpacker was that, without the consent or knowledge of the other makers of the note, at the request of the plaintiff, without any consideration whatever, and without a redelivery of said note, he signed it as surety. The note was dated April 12, 1899, and was payable 120 days after date. It appears from the evidence that the defendants had several months previously borrowed of plaintiff $3,000, and for which they had executed their joint note. It does not clearly appear for whose benefit the money was borrowed, but it may be inferred that it was for the benefit of defendant Wells. The note sued on was taken in lieu and in renewal of that first given. The defendant John D. Crumpacker testified that it was some days after the other defendants had signed the note that he signed it. But it does not appear that, at the time he signed, the original note had been surrendered, or that the renewal note was accepted in its stead until after he had signed it. In the absence of any showing to the contrary, we may presume that the plaintiff in the transaction exercised the care that a person of ordinary prudence would exercise in transactions of that kind, and therefore did not deliver up the original, and accept in its stead the renewal, note, until the latter had been signed by the defendant; and especially so in view of the fact that it seems that he was then the only party to the original whose solvency was unquestioned. We do not, therefore, think there was any evidence adduced entitling the defendant to a submission of this defense to the jury.

The said defendant, as a further defense, pleaded that, at the time he signed the note sued on, the plaintiff, by its cashier, agreed that when the same matured he would collect it,...