Greisser v. Emmons

• Decision Date: 11 December 1913
• Parties: GREISSER v. EMMONS et al.
• Court: Missouri Court of Appeals

161 S.W. 613

178 Mo. A. 28

GREISSER v. EMMONS et al.

Springfield Court of Appeals. Missouri.

December 11, 1913.

1. APPEAL AND ERROR (§ 1008)—REVIEW— QUESTIONS OF FACT.

In cases tried by the court without a jury, where no findings of fact are requested and no declarations of law given, the judgment will be affirmed, unless it is so manifestly erroneous that it cannot be sustained upon any theory under the evidence.

2. APPEAL AND ERROR (§ 842)—REVIEW— QUESTIONS OF LAW OR FACT.

Under Rev. St. 1909, § 10,023, providing that, where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not a holder in due course, where, in an action on a check which after being indorsed by the makers and a third person was returned to the makers from whom it was stolen, it appeared that plaintiff about 30 days after the theft indorsed it at a bank for the benefit of the thief, who then collected the proceeds and appropriated them to his own use, it was a question for the trial court sitting without a jury whether, in view of the delay in the presentation of the check and the manner in which plaintiff became indorser, he was a holder in due course.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Wilhelm Greisser against R. B. Emmons and others. Judgment for defendants, and plaintiff appeals. Affirmed.

I. N. Threlkeld and C. V. Buckley, both of Joplin, for appellant. H. S. Miller, of Joplin, for respondents.

ROBERTSON, P. J.

The defendants Howard & Brown issued to the other defendant, R. B. Emmons, checks on a bank in Joplin, Mo., which said Emmons indorsed in blank and returned to Howard & Brown. The checks were thereafter stolen from Howard & Brown, and about 30 days later the plaintiff indorsed them at a bank in Denver, Colo., for the benefit of the thief, who then collected the proceeds thereof and appropriated the same to his own use. At the time the plaintiff indorsed the checks they had the forged firm name of Howard & Brown thereon. This suit was instituted to recover the amount of the checks and protest fees.

The answer sets up as a defense the facts as to the theft of the checks and the indorsement by plaintiff, and alleges that the indorsement by Howard & Brown was a forgery, that the plaintiff was not a holder in due course because he "did not negotiate the same in the regular course of business and in good faith," and because at the time the plaintiff indorsed the checks they were more than 30 days' old, "thus losing their negotiability, all of which the plaintiff could and did know from the date of said checks."

A trial was had before the court without a jury and resulted in a judgment for the defendants and the plaintiff has appealed.

No declarations of law were requested or given, and no complaint is made in the brief filed here by the appellant questioning the admission or rejection of testimony. "Where no specific findings of fact are requested and no declarations of law given, unless we can say, that upon the evidence the judgment of the circuit court is so manifestly erroneous that it cannot be sustained upon any theory, the judgment must be affirmed."...