Hackett v. Dennison
| Decision Date | 20 May 1929 |
| Citation | 19 S.W.2d 541,223 Mo.App. 1213 |
| Parties | M. O. HACKETT, RESPONDENT, v. R. L. DENNISON, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. O. A. Lucas Judge.
AFFIRMED.
Judgment affirmed.
L. L Watts for respondent.
J. H Newman for appellant.
Trimble, P. J., absent.
This is a suit on a promissory note in the sum of $ 1000, dated Kansas City, Missouri, March 7, 1916, payable to the plaintiff as payee six months after date and bearing eight per cent interest from date. It was signed by the defendant and five other persons as makers. At the conclusion of the testimony the court directed a verdict for the plaintiff. Defendant has appealed.
The answer pleads that there was no consideration for the note; that subsequent to its signing by the defendant there was an oral contract entered into between plaintiff and defendant discharging defendant from all liability upon the note. The reply was a general denial.
The evidence shows that plaintiff and the signers of the note were interested in the Iroquois Mining Company which was engaged in mining operations at Joplin. The company maintained an office in Kansas City which was in charge of one Stump as manager and Miss Gordon as secretary.
Plaintiff testified that prior to the execution of the note all of the parties thereto, including the defendant, were present at a meeting in Kansas City; that this meeting was for the purpose of raising money as the company was out of funds and could not proceed further; that plaintiff at this meeting decided to advance $ 1000; that he did not advance the first $ 200 of the amount until a day or two after the meeting or until the makers signed the note. Defendant was president and manager of the company in charge of operations at Joplin. Plaintiff gave defendant a check for $ 200 at the time the note was signed and gave him a check for $ 800 two or three days thereafter. In connection with defendant's cross-examination the checks given by plaintiff to defendant were introduced in evidence. The check for $ 200 was dated at Kansas City, on March 7, 1916, and the one for $ 800, at Kansas City on March 10, 1916. The $ 200 check was endorsed in blank by the defendant and the $ 800 check was endorsed "R. L. Dennison, Deposit to credit of Iroquois Mining Company, by R. L. Dennison, Pres. & Treas."
Defendant testified that he was in Joplin and that plaintiff and Stump brought the note in question to that place; that at this time all the signatures of the makers were on the note except that of defendant; that he signed the note when the $ 200 check was given; that plaintiff did not like the way defendant was running the property and wanted to get "rid" of him and one Tom Lively, who was superintendent for the company; that after defendant signed the note Lively resigned as superintendent and defendant resigned as manager; that after the note was signed plaintiff required these resignations before he "would put in the money ($ 800) and accept the note;" that the $ 200 was paid defendant at another meeting at Joplin prior to the one when he signed the note; that he endorsed the $ 200 check over to Miss Gordon, who used it; that this $ 200 that plaintiff paid was "advanced to the company before the note, and then (plaintiff) agreed to make $ 1000 note (to advance), $ 800, and made (took) a note for $ 1000 covering the previous;" that defendant had charge of the operation of the property but not the finances; that at the meeting when the note was signed there was an arrangement that Stump was to be put in as manager; that on the same night after the note was signed Stump was put in as manager; that after Stump was put in as manager the witness turned the $ 800 check over to him and it was disbursed by Stump for the company and that the witness had nothing further to do with spending the money.
Defendant further testified that the morning after the note was signed he went out to the mine and found Stump in charge "and doing some work to which I objected;" that Stump told him he was in charge under plaintiff and to talk to plaintiff; that defendant talked with plaintiff who "said that it was absolutely real, that Stump was going to run the property in his (plaintiff's) interest and that I was out of it, and I said 'I will not be held responsible,' 'Oh, no' he says, 'we are not holding you responsible;'" that Stump was in charge of the property after this time. It seems to be agreed by the parties that the testimony of defendant that plaintiff "told him we are not holding you responsible" meant defendant was not to be held responsible on the note.
Defendant made the following offer of proof:
"Now if the court please defendant offers to show that after the defendant Dennison had signed this note there was an oral agreement between A. L. Stump and this plaintiff and the defendant, that if the plaintiff and Stump were permitted to manage the affairs of this mining corporation undisturbed and uninterrupted by this defendant, then it was agreed that said plaintiff would cancel all obligations of this defendant on this note, and that in pursuance of this agreement defendant turned the management of the corporation over to Stump and Hackett and in no way interfered with or interrupted their enjoyment of the same."
Plaintiff objected to this offer on the ground that it was not competent under section 908, Revised Statutes 1919, which provides, among other things, that "a renunciation (of a negotiable instrument) must be in writing unless the instrument is delivered up to the person primarily liable thereon." The objection was sustained. Plaintiff and defendant were the only witnesses at the trial.
It is insisted by defendant that the court erred in directing a verdict in favor of plaintiff for the reason that there was evidence tending to show that there was no consideration given to defendant for his signing the note; that the $ 200 check was given before he signed it; that there was no evidence of an agreement that defendant should sign such a note when that check was given; that after defendant signed the note plaintiff refused to and never did pay the other $ 800 to the defendant as contemplated, but forced him out of the management of the company and directed him to endorse the checks over to Miss Gordon and Stump.
There is no evidence that the $ 200 check was turned over to Miss Gordon at the direction of plaintiff and none that the $ 800 check was turned over to Stump at his direction. There is no contradiction in the testimony that the entire $ 1000 was advanced for the use of the company and when defendant was forced out he naturally turned the money over to his successor as manager of the business.
Defendant admitted his endorsement upon the $ 800 check showing that he deposited it to the credit of the mining company. The endorsement of Stump does not appear upon the check, but assuming that defendant turned the check over to Stump as he testified, there is no evidence or inference from the evidence that the money was to be advanced to defendant for his own purposes, or that thereafter defendant, having been forced out of the company, was directed by plaintiff to turn it over to Stump. If it was the understanding that the money was being furnished to the company it would make no difference whether plaintiff directed defendant to turn it over to Stump. Defendant continued to be interested in the company as a stockholder but it is not even necessary that the promisor should be benefited by the consideration. A benefit to a third person is sufficient. [13 C. J., p. 325; 8 C. J., pp. 213, 214.] It has been held that there is a consideration although it does not pass to the maker personally but to the corporation of which he is manager or president. [8 C. J., p. 214; Dry Goods Co. v. Linville, 93 Kan. 634, 145 P. 876.]
It is next insisted that the court erred in directing a verdict in favor of the plaintiff for the reason that after the note was signed plaintiff refused to deliver over the $ 800 until Stump was put in as manager, and it was agreed that if defendant would step out and deliver over the management of the mine to Stump and in no way interfere therewith...
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