First Nat'l Bank of Trenton v. Gillilan

• Decision Date: 31 October 1880
• Citation: 72 Mo. 77
• Parties: FIRST NATIONAL BANK OF TRENTON v. GILLILAN, Appellant.
• Court: Missouri Supreme Court

72 Mo. 77

FIRST NATIONAL BANK OF TRENTON

v.GILLILAN, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

Shanklin, Low & McDougal for appellant.

W. P. Hall and C. A. Winslow for respondent.

NAPTON, J.

This was an action on the following contract:

TRENTON, Mo., May 23rd, 1874.

Ninety days after date we promise to pay to the order of Robert L. Gillilan, $2,200 for value received, with interest after maturity at the rate of ten per cent per annum at the First National Bank of Trenton, Missouri, and if not paid at maturity, and the same is placed in the hands of an attorney for collection, we agree and promise to pay an additional sum of ten per cent as an attorney's fee.

ROBERT L. GILLILAN,

SAMUEL GAY,

NATHAN GILLILAN.

This paper was indorsed by Robert L. Gillilan to the plaintiff. The defendant Nathan Gillilan denied the execution of this obligation, and asserted that his name was signed to said instrument by said Robert L. without any authority so to do. The cause was dismissed as to Gay, and the case was tried by a jury who found a verdict for plaintiff for $2,326.22. The evidence was conflicting. The tendency of the plaintiff's evidence was to show an express authority in Robert L. to sign his father's name to such obligations. This was in truth the only issue in the case. The testimony of the bank officials, Bradley, Carnes and Moberly, proves, if not contradicted, that Nathan Gillilan on three different occasions repeated to these officers his wish that they should regard his son as authorized to sign, not only notes without the clause about attorney's fee, but also the latter form of instrument such as is involved in this suit, which latter form was adopted and uniformly used by the bank in July, 1873, and from that time forward. They testified that on three several occasions Nathan Gillilan was at the bank in person, that these discounts began in 1872 and ended in 1874, that during this period from eighteen to twenty-four notes were discounted, that Nathan signed several of such notes himself, upon which he obtained money for himself. It further appears from the testimony, beyond dispute, that Robert L. was a son of Nathan, but had a family of his own, and lived from two to four miles from his father, and that Samuel Gay was his nephew and also had a family and lived from four to six miles from Nathan. And it appears that Nathan had himself signed a note for $650, upon which the names of Gay and his sons Robert and George were also appended. On the contrary, Nathan Gillilan denied that he had ever noticed the change in the form of the notes taken by the bank, that he ever told any of the bank officers that Robert L. was authorized to sign his name; and testified that he told them he and his son Robert considered themselves good, that he was getting old and could'nt indorse any man's paper, that he never had but one note in plaintiff's bank and that was the note for $1,650, and its renewals, which he afterward paid off. Gay also testified for defendant, that he borrowed on the note now in suit $800, and gave his note for it, and Robert L. borrowed the other $1,400, that he found his note canceled and the one note for $2,200 substituted. In rebuttal, Carnes, the cashier, stated that Gay's testimony was untrue, that he knew nothing of Gay's getting $800, and Robert L. $1,400.

The court gave the following instructions for the plaintiff: 1. If the jury believe from the evidence that Robert L. Gillilan signed his own name and that of Nathan Gillilan to the instrument in suit, they must find for the plaintiff against both the defendants; provided they further find that the name of said Nathan was so signed by his authority or direction, or with his consent.

2. If the jury believe from the evidence that defendant, Nathan Gillilan, authorized Robert L. Gillilan to get money from plaintiff and sign or use his name to the instrument sued on therefor, and that said Robert did, in pursuance of such authority, borrow of plaintiff $2,114.75, and to secure the payment thereof did make the instrument sued on, signing the said Nathan's name thereto as a maker of said instrument, then they must find for the plaintiff $2,114.75 as against both the defendants, and an attorney's fee of ten per cent of that amount added thereto.

To the giving of said instructions the defendant, Nathan Gillilan, objected. The court overruled said objection and defendant excepted.

The court also gave the following instructions for defendant: 1. Notice of the form of the contract used at plaintiff's bank received after authority had been given by Nathan to Robert L. Gillilan to sign his name at plaintiff's bank, if such authority was given, cannot avail plaintiff. The burden of proof is upon the plaintiff to show that Nathan Gillilan had full knowledge of the form of the contract in general use by plaintiff at the time such authority to sign his name was given, if it was given.

2. In making up their verdiet the jury will reject all evidence in regard to notes executed to parties other than the plaintiff.

3. Unless the jury find from the evidence that Robert L. Gillilan, at the time of the execution of the contract in suit, had authority to sign Nathan's name to such an instrument, they cannot find for plaintiff, even though said Nathan may have promised to pay other instruments to which his name had been signed by said Robert L.

The court refused the following instructions offered by defendant, and defendant excepted: 4. General authority to sign his name to an instrument for money borrowed of ...