First State Bank v. Hammond

• Decision Date: 02 April 1907
• Citation: 101 S.W. 677,124 Mo. App. 177
• Parties: FIRST STATE BANK OF CORWITH, IOWA, v. HAMMOND.
• Court: Missouri Court of Appeals

101 S.W. 677

124 Mo. A. 177

FIRST STATE BANK OF CORWITH, IOWA, v. HAMMOND.

St. Louis Court of Appeals. Missouri.

April 2, 1907.

TRIAL — QUESTION FOR JURY — UNCONTRADICTED ORAL TESTIMONY.

Where an issue of fact is controverted, and oral testimony of plaintiff's officers must be relied on as proof of the truth, though their testimony is uncontradicted, the jury has a right to find against it, subject only to the power of the trial court to grant a new trial.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by the First State Bank of Corwith, Iowa, against S. R. Hammond. Judgment for defendant. Plaintiff appeals. Affirmed.

Jas. Orchard and C. R. Wood, for appellant. Green & Clark, for respondent.

GOODE, J.

This case was here on a former appeal, when the judgment was reversed for an error in one of the instructions. Bank v. Hammond, 104 Mo. App. 403, 79 S. W. 493. The verdict at the second trial was on the same evidence introduced at the first trial, except the testimony that the cashier of the plaintiff bank inquired concerning the solvency of the defendant before purchasing the notes. The action is on two negotiable promissory notes for $500 each, dated January 21, 1901, payable to the Corwith Nursery Company, at Corwith, Iowa, one year after date. Plaintiff is a bank in Corwith, Iowa, and sues as indorsee of the notes, claiming to have purchased them in good faith before maturity for a valuable consideration, to wit, $1,000. The cashier testified the purchase was made February 1, 1901, or a few days after the notes were made. He testified, further, that the officers of the bank believed the Corwith Nursery Company was solvent, and had no notice or intimation of any fraud in procuring the notes or lack of consideration for them. The Corwith Nursery Company is an incorporated concern, with its chief place of business in the town of Corwith; but it was not a customer of the plaintiff bank. Defendant swore he was induced to execute the notes by the fraudulent conduct of Uecke, the secretary and general manager of the nursery company; that Uecke came to Olden, Mo., where Hammond lived, and asked him to work for the company, attaching as a condition that he (Hammond) should take stock in the company, as it was not expedient to give any one a position who did not hold stock; that it was agreed between him and Uecke that Hammond should take stock and pay for it in fruit trees; that Uecke insisted defendant should execute his notes as security for the price of the stock, until the payment in trees was made, and defendant did so on the understanding that the notes were to be returned to him if the condition of the company was not as represented; that Uecke represented it to have 80 acres of land adjoining the town of Corwith, 40 acres of which were in nursery stock, and also that the company was doing an annual business of $90,000 and paying 33 per cent. annual dividends; that a week or two after defendant purchased the stock he went to Corwith, examined the books of the company, and found it did not own anything, and had only done a business of $4,000 or $5,000 the year before; that on February 27, 1901, defendant wrote the...