First Nat. Bank v. Stam

• Citation: 171 S.W. 567,186 Mo. App. 439
• Decision Date: 12 December 1914
• Docket Number: No. 1361.,1361.
• Parties: FIRST NAT. BANK OF MADISON v. STAM et al.
• Court: Court of Appeal of Missouri (US)

171 S.W. 567

186 Mo. A. 439

FIRST NAT. BANK OF MADISON v. STAM et al.

No. 1361.

Springfield Court of Appeals. Missouri.

December 12, 1914.

1. PLEADING (§ 430) — VARIANCE — WAIVER.

Under Rev. St. 1909, § 1846, providing that no variance between the pleading and proof shall be deemed material, unless it has actually misled the adverse party to his prejudice, which must be shown by affidavit, and section 1847, providing that, where the variance between the pleading and proof is not material, the court may direct the facts to be found according to the evidence, or may order an immediate amendment of the pleadings without costs, the variance between the petition declaring upon a note due in 90 days, executed by a corporation and defendant to themselves and indorsed to plaintiff, and the note offered in evidence, which was due in 30 days, executed by the corporation, defendant, and another, payable to the corporation and indorsed by it to plaintiff, is immaterial, in the absence of an affidavit of surprise.

2. BILLS AND NOTES (§ 487) — ACTIONS — PETITION — AMENDMENT — NEW CAUSE OF ACTION.

An amended petition correcting the allegations to conform to the note was not subject to a motion to strike, as setting up a new cause of action.

3. DISMISSAL AND NONSUIT (§ 50) — VARIANCE — WAIVER.

Where there is a material variance between the note declarea on in the petition and that filed therewith as an exhibit, while the petition is not demurrable, since the exhibit is not a part thereof, the cause may be dismissed for failure to file the instrument declared on as required by Rev. St. 1909, § 1844.

4. BILLS AND NOTES (§ 523) — ACTIONS — EVIDENCE — INDORSEMENT.

Where it was uncontradicted that the plaintiff had purchased the note sued on and was the owner thereof, and that the payee whose name appeared thereon as having indorsed it was a defendant who by his default admitted plaintiff's ownership, the makers cannot object that there was no proof of indorsement.

5. BILLS AND NOTES (§ 491) — ATTORNEYS' FEES — REASONABLENESS.

Where a note provides for a 10 per cent. attorney's fee, the holder is entitled to judgment for that amount without proving that it is reasonable, especially where there is no contention that it is unreasonable.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by the First National Bank of Madison against Thomas H. Stam and another. Judgment for the plaintiff, and defendant Stam appeals. Affirmed.

Edgar & Edgar, of Ironton, B. H. Boyer, of Farmington, and W. L. Coley, of East St. Louis, Ill., for appellant. Hope, Green & Seibert, of St. Louis, for respondent.

ROBERTSON, P. J.

This is an action against appellant and the St. Francis Oil Company on a promissory note. A trial resulted in a verdict for the amount of the note, interest, and attorney's fee. Defendant Stam appealed.

The petition declares on a note for $4,000, dated November 23, 1912, due in 90 days after its date, executed by St. Francis Oil Company and appellant to themselves, and indorsed to plaintiff, providing for interest at the rate of 8 per cent. per annum, and for 10 per cent. attorney's fee, if placed in the hands of an attorney for collection. The note filed therewith conforms to these allegations, except it was due in 30 days after its date, was payable to, and indorsed by, the St. Francis Oil Company, and was signed by it, another party, and appellant as makers. The plaintiff filed an amended petition accurately describing the note filed, which, upon the motion of appellant, was stricken out, because, as alleged by appellant, it set up a different cause of action from that alleged in the original petition. Plaintiff then refiled its original petition, to which appellant filed an unverified answer, and the parties proceeded to trial; the St. Francis Oil Company defaulting. When the note was offered in evidence, appellant objected thereto on account of the variance above stated. The objection was overruled, and the note was admitted in evidence. The plaintiff's cashier testified, without objection, that it owned the note, having paid $4,000 therefor. The appellant offered no testimony.

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