Fourth Nat'l Bank of St. Louis v. Noonan

• Decision Date: 31 October 1885
• Citation: 88 Mo. 372
• Parties: THE FOURTH NATIONAL BANK OF ST. LOUIS v. NOONAN, Appellant.
• Court: Missouri Supreme Court

88 Mo. 372

THE FOURTH NATIONAL BANK OF ST. LOUIS

v.NOONAN, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Boyle, Adams & McKeighan for appellant.

(1) The paper of April 6, 1880, executed and delivered by the respondent to William J. Berkley, vested in him the title to the note sued on, and gave him the right to sue upon it in his own name as the holder thereof. Any other construction of it renders it nugatory and void, an interpretation which the court will hesitate to put upon any instrument. The court will rather seek the intention of the parties, and take that view of the transaction which will best serve the purpose which the parties had in view. A note may be assigned on a piece of paper separate from that on which the note is written. McGee v. Ridderbarger, 39 Mo. 365; Ford v. Angelrodt, 37 Mo. 50. No particular form of words is necessary to an assignment. It may be quite sufficient to transfer the property, although the word assign should not be used, and the assignment may be inferred from the words used. Weed v. Jewett, 2 Metcalf, 608; Gerrish v. Sweetser, 4 Pickering, 374. An assignment may be effected by a power of attorney to collect the money and distribute it. Watson v. Bagaley, 12 Pa. St. 164. Whatever may be the inaccuracy of expression, or the inaptness of the words used in an instrument in a legal view, if the intention to pass the legal title to property can be clearly discovered, the court will give effect to it, and construe the words accordingly. Tiernan v. Jackson, 5 Peters, 580. If the paper in question worked an assignment of the note then the respondent could not sue upon it. Long v. Heinrich, 46 Mo. 603. (2) The judgment before the justice of the peace amounted to a voluntary credit on the whole note of all in excess of two hundred and fifty dollars, and the note so reduced by such credit was taken up into the judgment, and ceased to longer have any valid existence as a subsisting liability against the appellant, and this is true whether the assignment to Berkley was of the whole or only part of the note. No demand included in a plaintiff's complaint, or in a defendant's set-off or counter-claim, can be allowed in a suit if at any time before its allowance it has been taken into account in forming a judgment in another action between the same parties. Freeman on Judgments, sec. 224; Andrews v. Varrell, 46 N. H. 17; McGildroy v. Aubry, 30 Vermont 538; Bank of North America v. Wheeler, 28 Conn. 433. A judgment concludes the rights of the parties whether it includes the whole or only a part of the demand. Union R. R. Co. v. Traube, 59 Mo. 355; Flaherty v. Taylor, 35 Mo. 447; Freeman on Judgments, sec. 240; Bigelow on Estoppel, 117. (3) The respondent is estopped from denying the right of Berkley to enforce the note against appellant in his own name. Prickard v. Sears, 6 Ad. & E. 469; Rice v. Groffman, 56 Mo. 434; Taylor v. Sangrain, 1 Mo. App. 312. If the instrument of assignment should be held to be in the nature of a power of attorney coupled with an interest, then it is irrevocable. Hunt v. Roumanier, 8 Wheat. 174; Hartley's Appeal, 53 Pa. St. 212; Hutchens v. Hubbard, 34 N. Y. 24. If Berkley under the paper of April 6, 1880, was made merely an agent for collection, then he could sue in his own name on the note. Webb v. Morgan, 14 Mo. 428; Beattie v. Lett, 28 Mo. 596; Simons v. Belt, 35 Mo. 461.

G. A. Finkenlburg for respondent.

(1) The instrument executed by plaintiff to Berkley is not an assignment. It is a contingent transfer of an interest in a future fund which may or may not come into actual existence. Spain v. Hamilton, 1 Wall. 604; Green v. Ashley, 6 Leigh, 135; Ford v. Garner, 15 Ind. 298. (2) A note cannot be assigned in part so as to enable the partial assignee to maintain an action on the same against the maker. Edwards on B. & N., 279; 1 Daniel on Neg. Paper, sec. 668; Frank v. Kaigler, 36 Tex. 305. (3) The attempted assignment was simply void as against the maker, and conferred no rights on the partial assignee as against him. The right to control and recover the whole demand remained in the assignor, and the defendant in the case at bar had a complete defence against the partial assignee. Mandeville v. Welch, 5 Wheaton, 277; Love v. Fairfield, 13 Mo. 300; Burnett v. Crandall, 63 Mo. 410; Beardslee v. Morgner, 73 Mo. 22. And this is particularly so in cases of bills and notes. Lyon v. Lyon, 4 Bibb. 438; Loomis v. Robinson, 76 Mo. 488; Elledge v. Straughn, 2 B. Monroe, 81; Bank v. Trimble, 6 B. Monroe, 599; Fairgrieves v. Lehigh Co., 5 Am. L. Reg. (O. S.) 161; Frank v. Kaigler, 36 Texas, 305. A partial assignee cannot recover on his fractional interest, without making his assignor a party. Smith v. Gary, 2 Devereux & Battie, 42, 50. (4) If, however, the debtor chooses to waive his right to resist the division of an entire demand, he may do so, and having done so, he is thereafter estopped from complaining. Burnett v. Crandall, 63 Mo. 410; Lett v. Morris, 4 Simons, 607. Much less can he, by submitting to a judgment for a part, rid himself of his entire liability for the remainder. Cook v. Ins. Co., 8 Howard, 514. (5) The doctrine that when a party splits up his cause of action, and recovers a part, he is barred as to the remainder applies only to cases where the same person is plaintiff in different suits brought to enforce a single demand. (6) The trial court erred in admitting the proceedings and judgment in the suit of Noonan v. Berkley in evidence against this defendant. A judgment in a prior suit is admissible only against a person who was a party thereto, or against some one who claims under a party to the record. Privity in estate is based on succession; one who succeeds to another's title may, under circumstances, be bound by judgment against his predecessor, but the predecessor is never bound by judgment against his successor, unless he had an obligation to defend the suit, was duly notified, and had a reasonable opportunity to do so. 2 Phillip's Evidence, 6; Bigelow on Estoppel, 95; Freeman on Judgments, sec. 162; 2 Smith's Lead. Cas., 627 and 800; Hunt v. Haven, 52 N. H. 162; Mackey v. Coates,70 Penn. Stat. 350. See this doctrine applied to the relation of assignor and assignee. McDonald v. Gregory, 41 Iowa, 513; Brown v. Brown, 2 E. D. Smith, 153; Baring v. Fanning, 1 Paine, 549; Bertrand v. Bingham, 13 Texas, 266; Maupin v. Compton, 3 Bibb. 214. Judgment rendered after suit commenced cannot be pleaded in bar. State v. Spikes, 33 Ark. 801, 810.

BLACK, J.

This suit is based upon a note made by the defendant dated April 30, 1877, maturing June 24, 1877 for twenty-four thousand dollars and payable to plaintiff. The petition gives credits for proceeds of certain collaterals and demands judgment for some nine or ten thousand dollars. The suit was begun in 1882 and the cause came on for trial March 20, 1883, when the defendant filed a second amended answer. The third and fourth defences, set up for the first time in this amended answer, are based upon the following facts as disclosed at the trial. Noonan, the defendant here, sued Berkley before a justice of the peace, and on the return day of the writ, which was the day before the present suit came on for trial, Berkley appeared before the justice and filed an off-set and judgment was at once entered for Berkley against...