Globe American Corporation v. Miller Hatcheries

• Decision Date: 15 November 1937
• Docket Number: No. 18971.,18971.
• Citation: Globe American Corporation v. Miller Hatcheries, 110 S.W.2d 393 (Mo. App. 1937)
• Court: Missouri Court of Appeals
• Parties: GLOBE AMERICAN CORPORATION v. MILLER HATCHERIES, Inc., et al.

110 S.W.2d 393

GLOBE AMERICAN CORPORATION v. MILLER HATCHERIES, Inc., et al.

No. 18971.

Kansas City Court of Appeals. Missouri.

November 15, 1937.

Appeal from Circuit Court, Sullivan County; Paul Van Osdol, Judge.

"Not to be published in State Reports."

Suit by the Globe American Corporation against the Miller Hatcheries, Inc., and K. I. Miller. From an adverse judgment, K. I. Miller appeals.

Reversed and remanded.

L. F. Cottey, of Lancaster, and P. M. Marr, of Milan, for appellant.

York & York, of Lancaster, and L. E. Atherton, of Milan, for respondent.

BLAND, Judge.

This suit is based upon two promissory notes executed by the defendant, Miller Hatcheries, Incorporated. It is alleged in the petition that the payment of these notes was guaranteed by the defendant, K. I. Miller. Judgment by default was rendered against the defendant, Miller Hatcheries. The case, as to the defendant, Miller, was tried before the court without the aid of a jury. The court rendered judgment in favor of the plaintiff and against both defendants, in the sum of $1,094.57, with interest at the rate of 8 per cent. per annum, compounded annually from the date of the judgment, and the further sum of $109.35, as attorneys fees. Defendant, K. I. Miller, appealed.

The petition is in two counts. The first count alleges the incorporation of the plaintiff and the Miller Hatcheries, and then proceeds as follows:

"2. For its first cause of action, plaintiff states that the defendant, Miller Hatcheries, Incorporated, on the 1st day of November, 1922, by its negotiable promissory note of that date, by it duly executed, promised for value received to pay to plaintiff in seven months after said date the sum of $700.00, with interest from date thereof, at the rate of 6% per annum, interest to be due and payable annually and if not paid when due to draw 8% interest per annum from maturity and if the interest be not paid annually, to become as principal and bear the same rate of interest. Said note expressing on its face to be for value received and that the signers and endorsers each waived demand, notice and protest and agree to pay all costs and attorneys' fees should said note be collected by law. Said note being filed herewith and marked Exhibit `A'.

"3. Plaintiff states that a reasonable attorney fee for the collection of this note would be the sum of 15 per cent, of the amount due, principal and interest.

"4. Plaintiff further states that at the request of the plaintiff and before the execution of the note hereinabove mentioned the defendant, K. I. Miller at the request of the plaintiff did guarantee the payment of said note and said guaranty was with the express intention on the part of the said K. I. Miller of causing plaintiff to accept said note; that said guaranty by which defendant K. I. Miller guaranteed said note is in words and figures as follows, to-wit:

                      "October 28, 1932
                "Mr. W. D. Harvey
                "Globe American Corporation
                "Kokomo, Indiana
                

"Dear Mr. Harvey: We hereby accept your proposition in full settlement of all claims against the Miller Hatcheries of Lancaster, Missouri or K. I. Miller, personally, which outlined as we understand it is as follows:

"The Miller Hatcheries, Incorporated, of Lancaster, Missouri, are to give two notes of $700.00 each, these notes drawing 6% interest from date. One note due June 1, 1933, and the other note due July 1, 1933. It is also understood that the writer will personally guarantee the payments of these notes, but would like to have this provision understood that if for any reason Montgomery Ward & Co., should fail to send the Miller Hatcheries orders for baby chicks, sufficient to liquidate the two notes, then 50% of the $1400.00 may be renewed for a period of one year.

"It is also understood that you will use every effort possible to get as much additional business from Montgomery Ward & Co. as possible and that we receive the same price that Ward pays P. F. Clardy for the same grade and variety of chicks.

"It is also agreed that we are to send you certain checks we have on a party in Indiana together with the power of attorney to act for us and any amount collected on these checks or accounts can be applied equally on these two notes. It is also understood and agreed that the Globe American will drop the suit now pending in the Circuit Court of Lancaster, Missouri, against the Miller Hatcheries as soon as this transaction is carried out. The Miller Hatcheries will pay all costs but no attorney fees to the Globe American.

     "Very truly yours
                                "[Signed] K. I. Miller.
                

"Plaintiff further states that by reason of the guaranty of the said defendant K. I. Miller as above set out plaintiff was induced to and did accept the note above mentioned when tendered by the Miller Hatcheries, Incorporated. That a copy of said guaranty is hereto attached and marked Exhibit `C.'"

The petition then alleges that the Miller Hatcheries, Incorporated, made certain payments upon the note; that defendants had refused to pay the balance; that the plaintiff was the owner and holder of the note and prayed judgment in the sum of $104.56 with interest, together with a reasonable attorney's fee.

The second count adopts the allegations of the first count, describes the second note, states that no payment had been made upon it and prayed judgment in the sum of $700.00 with interest and attorneys fees.

W. D. Harvey, the only witness in the case, testified for the plaintiff as follows: That he was chairman of the board of directors of the plaintiff; that on October 28th, 1932, he was the acting president thereof; that, "I first saw plaintiff's Exhibit C during the course of its preparation by K. I. Miller at the Miller Hatcheries, Keokuk, Iowa. I saw Mr. Miller sign that instrument, Exhibit C. Mr. York: After Miller signed it, what was done with it? A. I signed it and accepted it. * * * There were two copies of this instrument made, both of which were signed by Mr. Miller and myself, and the original was given to me by Mr. Miller, who kept the duplicate. Plaintiff's Exhibit C is the instrument to which I refer."

The guaranty was then introduced in evidence over the objection of the defendant. The witness was then asked: "Q. How did it come about that Mr. Miller gave you this instrument?" He answered: "We requested this agreement of guaranty from K. I. Miller personally, before we would accept notes in the settlement of the merchandise debt owed us by the Miller Hatcheries. * * * I have seen plaintiff's Exhibit C before, I received it thru the United States mails at my office in Kokomo, Indiana, accompanied by the two notes identified as plaintiff's Exhibits A and B."

Defendant's attorney then admitted that the signature to Defendant's Exhibit D was that of defendant. Exhibit D was then introduced into evidence, over the objection of the defendant. This exhibit consists of a letter signed by the defendant and dated October 31st, 1934. The letter is as follows:

"Mr. W. D. Harvey,
                "Globe American Corporation,
                "Kokomo, Indiana.
                

"Dear Mr. Harvey: We are enclosing two hatchery notes of $700.00 each, as per our letter of October 28, in settlement of all claims against the Miller Hatcheries of Lancaster or K. I. Miller personally. As per agreement these notes are dated November 1, one for $700.00 due June 1, 1933, the other note of $700.00, due July 1, 1933."

The letter goes on to remind the addressee about the agreement concerning Montgomery Ward & Company and that if Montgomery Ward & Company did not send sufficient orders to take up the notes that they would be extended for one year and "As expressed in my previous letter the writer will personally guarantee these notes to be paid and you are to use every effort possible to get as much additional business from Montgomery Ward as possible." It then gives the excuse for not sending the power of attorney to collect the "Indiana accounts."

Over the objection of the defendant the notes mentioned in the petition were then introduced in evidence. The witness then testified that he accepted these notes but that they would not have been accepted except for the defendant having entered into the guaranty; that toward carrying out the contract he withdrew the suit pending at the time against the Miller Hatcheries. "We accepted the two notes from the Miller Hatcheries and we secured all the chick business for the Miller Hatcheries from Montgomery Ward and Company that was possible to get from them."

It is insisted by the defendant that...