Fitzgerald v. Barker

• Decision Date: 20 December 1888
• Citation: 10 S.W. 45,96 Mo. 661
• Parties: FITZGERALD v. BARKER.
• Court: Missouri Supreme Court

10 S.W. 45

96 Mo. 661

FITZGERALD v. BARKER.

Supreme Court of Missouri.

December 20, 1888.

1. NEGOTIABLE INSTRUMENTS — CONSIDERATION — SATISFACTION OF LARGER DEBT.

One who takes a note in part satisfaction of a larger debt, and releases valuable liens, is a holder for value.

2. SAME — ACTION ON — KNOWLEDGE OF FRAUD.

Where a grantee assumes in the deed the payment of notes of the grantor, the grantor's fraudulent misrepresentations as to the non-existence of liens are no defense to an action against the grantee by a holder of the notes for value before maturity, the latter not being implicated in the fraud; and the holder cannot be prejudiced by knowledge subsequently acquired.

3. SAME — EVIDENCE — PAYMENT OF SIMILAR NOTE.

The grantee having paid one of the notes, it is proper to refuse to allow him to testify to "the circumstances concerning the payment."

4. APPEAL — REVIEW — RULINGS ON EVIDENCE.

Any admissions by the holder, at the time of payment, tending to show complicity in the fraud, should have been disclosed at the time of offering testimony of the circumstances in order to raise error in its rejection because of such alleged admissions.

5. SAME — REVIEW — HARMLESS ERROR — REVERSAL.

A defendant cannot complain of erroneous instructions where the evidence admits of a verdict for plaintiff only, especially as by Rev. St. Mo. § 3775, there cannot be a reversal except for error materially affecting the merits.

Appeal from St. Louis circuit court; WILLIAM H. HORNER, Judge.

Action by John Fitzgerald against John Barker on several promissory notes. Judgment for plaintiff, and defendant appeals.

Taylor & Pollard, for appellant. George A. Castleman, for respondent.

SHERWOOD, J.

This cause comes here on appeal, and for the third time. 70 Mo. 685; 85 Mo. 13. The petition alleges that on November 2, 1872, John S. Thomas and wife conveyed to defendant certain real estate, by warranty deed, wherein they covenanted to warrant and defend the title to said premises against the lawful claims of all persons whomsoever, except against the following-named deed of trust and notes on said property, to-wit. Two notes of $2,000 each, payable two years after date, and eight interest notes, for $100 each, payable, respectively, at 6, 12, 18, and 24 months after date, all of said notes being made by said John S. Thomas, and payable to his own order, (which said defendant assumed and agreed to pay,) and the taxes for 1873; said assumption and agreement being duly incorporated in said deed. Plaintiff, at the date of said deed, was the holder and owner of one of said $2,000 notes, and the four interest notes thereon, payable, respectively, in 6, 12, 18, and 24 months from date, all said notes bearing date November 1, 1872, and bearing interest, after maturity, at 10 per cent. per annum. Defendant accepted said deed, and entered into possession of said property thereunder and thereby, and by virtue of said assumption and agreement and assignment to plaintiff became liable to pay said several notes to plaintiff, as the holder thereof, as they severally fell due. The first of said interest notes was duly paid by defendant to plaintiff at maturity thereof, but the residue remains in his hands, unpaid; but, although said $2,000 note and said three interest notes, due, respectively, in 12, 18, and 24 months, have been long since due, yet they, and each of them, remain wholly unpaid. Wherefore, plaintiff prays judgment for the amount of said $2,000 principal note and said three unpaid interest notes, due at 12, 18, and 24 months from date, with interest and costs. By his answer the defendant admits that on the 2d day of November, 1872, John S. Thomas and wife, by their deed of that date, conveyed to this defendant the real estate in said petition described by warranty deed, and that said deed contained an assumption of two notes of $2,000 each, executed by John S. Thomas, and eight interest notes of $100 each; but the defendant denies each and every other allegation of the petition. For a further and special defense the answer sets up that Thomas made fraudulent misrepresentations and concealments as to certain mechanics' liens and deeds of trust, which were not recited in the deed from Thomas to Barker, and by such misrepresentations Barker was induced to accept such deed in settlement of a demand he held against Thomas; "that plaintiff knew of and was privy to said false and fraudulent misrepresentation;" that defendant never learned of the falsity of such representations till early in 1873; that the property conveyed was thereafter sold under the mechanic's lien judgment; and that the title, as conveyed by Thomas to defendant, was wholly defeated thereby. Plaintiff's reply was a general denial.

1. There is not a particle of evidence in this record tending to show that plaintiff was in any way concerned in the alleged fraudulent misrepresentations made by Thomas. This being true, it is useless to inquire what frauds Thomas practiced, or what misrepresentations he made as to the non-existence of other incumbrances or liens, since plaintiff had no part or lot in that matter.

2. The testimony shows that he was the purchaser, before maturity, of the notes in suit, and therefore, presumably, the innocent purchaser, and, as a result of a purchase in such circumstances, he could not be prejudiced, nor his title invalidated, by subsequently learning that Thomas had been a fraudfeasor....