Haack v. Hammer

• Decision Date: 09 November 1925
• Citation: 283 S.W. 741,221 Mo.App. 380
• Parties: C. F. HAACK, RESPONDENT, v. LIZZIE HAMMER, GUARDIAN, APPELLANT. [*]
• Court: Kansas Court of Appeals

283 S.W. 741

221 Mo.App. 380

C. F. HAACK, RESPONDENT, v. LIZZIE HAMMER, GUARDIAN, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

November 9, 1925

Appeal from the Circuit Court of Gentry County.--Hon. John M Dawson, Judge.

AFFIRMED.

Judgment affirmed.

E. C Lockwood for appellant.

George P. Adams for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action against one of the makers to collect a promissory note, given in payment for the purchase of a secondhand automobile truck. The note, upon which the action is based, is dated July 18, 1921, and recites that "six months after date, I, we, or either of us, as principal, promise to pay C. F. Haack, or order, $ 300." The note was to draw interest at eight per cent payable annually and if not so paid to become a part of the principal and bear interest at the same rate. It is further provided that if the note is not paid at maturity and is placed in the hands of an attorney for collection, or if suit be instituted thereon, the principals agree to pay ten per cent attorney's fees in addition to court costs and expenses incurred in collecting the same. The note is signed H. C. Sarver, G. W. Sarver and C. E. Hammer.

The note was not paid at maturity. After the execution of the said note, said C. E. Hammer was declared, by the probate court, to be incapable of managing his affairs and his sister, Lizzie Hammer, with whom C. E. Hammer had made his home in common, for many years, was appointed his guardian and placed in charge of his affairs. Said guardian refused payment of the note and a claim was filed against the estate of Charles E. Hammer in the probate court. Said court, after a hearing, refused the claim and an appeal was taken to the circuit court where the cause was tried to a jury, resulting in a verdict for plaintiff in the principal sum of $ 342 and $ 34.20 attorney fees, being a total of $ 376.20. Motions for new trial and in arrest were overruled and defendant appeals.

The appeal is before us on the record and brief of appellant only. The record contains no formal pleadings, none being required in the probate court, and in this situation we must read the entire record, which we have done.

The facts disclosed are that plaintiff owned a second-hand truck described as a "Ford Chassis with a Smith Form A attachment, chain drive." The testimony shows that Charles E. Hammer is past sixty years of age and the owner of considerable land and personal property; that G. W. Sarver, another signer, was a tenant on some land owned by Hammer at the time of the execution of the note and for sometime previous; that H. C. Sarver, a son of G. W. Sarver, was about seventeen years old at the time of signing the note; that plaintiff sold the truck to H. C. Sarver.

Before the sale, as aforesaid, it appears there had been some discussion between plaintiff and H. C. Sarver as to how the price should be met. H. C. Sarver testified that he asked plaintiff if Charles E. Hammer would be satisfactory on a note in payment for the car. Plaintiff testified he made some inquiries of persons acquainted with the financial standing of Hammer and being satisfied, told Sarver that he would accept a note for the purchase price of the truck, if signed by Hammer. It is in evidence that in June, 1921, prior to the execution of the note in July, Hammer made an improvident investment in some Texas oil lands for which he turned over to the sellers thereof some $ 1700 in bank stock and gave his note for $ 3600. However, through the intervention of relatives of Hammer and the efforts of counsel, the bank stock was never transferred but was returned. The $ 3600 note is said to have been lost.

Soon after this occurrence, certain relatives of Hammer undertook to have him declared incompetent in the probate court of Gentry county, but because of the absence of the judge of said court, no final action was taken upon such application until February 11, 1922, when, on inquisition, the judge of said court declared Hammer incompetent to manage his own affairs, and, as stated, a guardian was appointed for him. Both in the probate court and in the circuit court payment of the note in question by the guardian of Hammer was resisted upon the grounds: (1) that the signature of C. E. Hammer to the note is a forgery; (2) that if said signature is not a forgery it was procured by fraud and imposition; (3) that at the time of the purported execution of said note, Hammer was weak of intellect, easily influenced and incapable of realizing the obligation incurred in signing the note, and that plaintiff had knowledge of such mental condition at the time the note was executed; (4) conspiracy between plaintiff and H. C. Sarver to defraud said Hammer in securing his signature to the note; and (5) inadequacy of consideration.

Appellant charges the verdict was so contrary to the overwhelming weight of the credible evidence that it should work a reversal of the judgment. In this respect, it is necessary to note only that there was substantial evidence that C. E. Hammer had agreed to sign the note, previous to the signing thereof, and that he did sign it. There was also evidence in behalf of plaintiff by parties who testified that they knew C. E. Hammer's signature and that his signature on the note was genuine. It must be seen, under these circumstances, that it was the sole province of the jury to say whether there was a forgery of his signature. The jury determined this question against defendant's contention and we are not authorized to disturb their finding in this respect. This is the accepted rule in our jurisdiction. This court held in Brooks v. Terminal Co., 258 S.W. 724, 727: "The rule is not questioned that if there is any substantial evidence to support the verdict and judgment this court is not permitted to disturb the finding of the jury." [Moore v. Railway, 268 Mo. 31, 186 S.W. 1035; Reynolds v. Hanson, 191 S.W. 1030.]

It has been held that although a trial court is authorized by statute to set aside a verdict once because against the weight of the evidence, such authority is not given to an appellate court. [Neeley v. Synder, 193 S.W. 610.] The evidence and the weight of the evidence are solely matters for the consideration and determination of the jury. [Blass v. Life Ins. Co., 202 S.W. 270.] We therefore rule this point against defendant.

The same ruling applies to defendant's point that there was a conspiracy in the procurement of Hammer's signature to the note. The testimony applicable to the question of forgery is also applicable to that of conspiracy. Of course direct proof of conspiracy is seldom available, due to the nature of the charge, but here there is evidence to the effect that...