Harms v. Long

• Decision Date: 19 June 1919
• Docket Number: No. 2284.,2284.
• Citation: 213 S.W. 507
• Parties: HARMS v. LONG et al.
• Court: Missouri Court of Appeals

213 S.W. 507

HARMS v. LONG et al.

No. 2284.

Springfield Court of Appeals. Missouri.

June 19, 1919.

Rehearing Denied July 10, 1919.

Appeal from Circuit Court, Jasper County; R. A. Pearson, Judge.

Suit by Herman Harms against S. T. Long and others. Verdict for plaintiff for $1, motion for new trial denied, and he appeals. Reversed and remanded, with directions.

Tadlock & Tadlock, of Joplin, and Geo. V. Farris, of Webb City, for appellant.

M. R. Lively, of Webb City, for respondents.

BRADLEY, J.

This is a suit on a promissory note given by defendants to plaintiff on November 11, 1914, due on demand, and in the sum of $892.17, bearing interest at 5 per cent. The cause was tried to a jury. No instructions were asked, and none given. The jury returned a verdict for plaintiff for $1. Unsuccessful in obtaining a new trial, plaintiff appealed.

The petition is in the usual form. The answer admits the execution of the note, and pleads in substance that the execution of the note was an afterthought on the part of plaintiff to save himself from prosecution, and from trouble with a brewery company for whom plaintiff was agent, and that there was no consideration for the note; that it was agreed that no suit would ever be filed to collect the note, and that no attempt would ever be made to enforce collection; that the note was given for the sole purpose of holding for inspection and protection, and not "for any value whatever." The reply denied generally the new matter.

Defendants' version is that they went into the saloon business in July, 1914; that plaintiff "furnished" about $600 on the license; that during the time defendants operated the saloon they, bought their goods from plaintiff; that plaintiff "took it [saloon] off our hands for the debts we owed him, and sold it to Stribey & Fairburn"; that plaintiff was about to get into trouble for running a saloon without a license, and that to avoid this trouble plaintiff, after the consummation of the deal between plaintiff and defendants, whereby defendants were released from all obligations to plaintiff, came to defendants and represented that trouble was about to overtake him on account of the license, and induced defendants to give the note sued on.

Defendant S. T. Long, testifying of the circumstances under which the note was given, said:

"Q. Tell what he [plaintiff] said: A. `We are getting in bad, and I want the note to show you paid the rent and license to December 24th, and if we get into court it will protect me in the law on that.' He said the brewery was about to take his beer agency; he wanted, also, to show them this note was oustanding. He says: `We don't care for that; just want to have it for evidence.' The note was to be bogus; nothing only to show lie had some evidence. He says: `After everything is all settled up, we will tear all this stuff up."

Further this witness says:

"I owed Harms until we squared everything up, when I turned the lease over to him. I turned the lease over to him about that date. We figured up everything somewhere about the 10th. Whenever he took the saloon over, and put Stribey and Fairburn in there, it was to square what I owed him. On the day I invoiced, I owed him the amount specified, all except two months' rent and two months' license. That is to come out of that. He figured it simply to show, if he got pinched, that the note would protect him, and that I had the license and rent."

Defendant J. A. Long corroborates his brother as to why the note was given, but on cross-examination says:

"Q. I am asking you to give the jury some idea of how much you and your brother owed this plaintiff when you made this sale. Just give them an idea. A. Well, I couldn't give you what he claimed. Don't remember what the indebtedness was. I signed this note; was present when my brother signed it, and knew the amount of it when I signed it. No; I did not read it over carefully; didn't hardly read it. I didn't want to sign that note; didn't think we ought to sign it, because I didn't think we owed that bill. Q. If you didn't owe it, then why did you sign it? A. I didn't think we owed quite that much. Q. Why did you sign a note for more than you owed? A. To square up the debts I did owe, whatever they were."

Plaintiff's version is that the time the defendants were operating their saloon he was in the wholesale liquor business, and sold defendants goods; that defendants sold directly to Stribey and Fairburn, and not to plaintiff; that at the time of the sale to Stribey and Fairburn defendants owed plaintiff $1,440.70; that Stribey and Fairburn assumed and gave their note for $548.53 of this amount, and defendants gave the note sued on for the balance; that he made demand on defendants several times to pay the note, and that defendants always gave some sort of an excuse, but never did deny owing the note at any time, until suit was filed.

It will be noted that defendants concede that on the day of the invoice they "owed the amount specified." The amount was distinctly specified in the statement bearing the same date as the invoice which is as follows:

                          "Webb City, Mo., November 10, 19—
                "Invoice of the Leisy Bar. Jim and Sam Long, Proprietors
                

                [The first 41 items of this invoice consist of
                 the different goods in stock, spoons, glasses
                 etc., amount to]............................... $ 74 93
                Unexpired license for 45 days.....................315 60
                Rent from November 10 to January 1, 1915......... 159 00
                                                                  ______
                     Total ..................................... $548 53
                   "The above invoice is correct and accepted by us
                                      "[Signed] S. T. Long
                                               "Jas. A. Long.
                                               "L. Fairburn.
                                               "John L. Stribey."
                

Plaintiff also offered in evidence the statement in which was "specified" the amount defendants owed as follows:

                                   "Joplin, Mo., Nov. 10, 1914.
                

                "Messrs. Jim and S. T. Long, Webb City, Mo., in Account
                in Full to Date with:
                H. Harms beer account........................... $ 98 25
                H. Harms note paid for S. T. Long................ 612 00
                John W. Leisy rent up to December 31, 1914..      285 00
                Keystone Liquor Co. account....................... 45 45
                                                                ________
                   Total...................................... $1,440 70
                Credit as per invoice............................ 548 53
                                                                ________
                    Due balance................................ $ 892 17
                

                "Received one promissory note of $892.17, payable
                on demand.                          H. Harms."
                

This statement was made in duplicate, and one copy delivered to defendants on November 10th, and one retained by plaintiff, on which plaintiff noted the execution of the note.

Defendants say that plaintiff "furnished" $600 on the license, but do not explain what they mean by "furnished." Plaintiff says:

"Long paid his own license. Mr. Long gave his note at the Mineral Bank on June 24th, and I had to indorse it. Mr. Long never paid that note, and was finally forced to pay it."

The record shows that Stribey and Fairburn had run for about ten days, when they got arrested for operating without any license; that Stribey and Fairburn then turned the saloon over to another party; and that this other party operated long enough to make an account with plaintiff, and went away to raise the money, and failed to return.

This whole record discredits the defense urged here, as does the verdict of the jury. The invoice which defendants signed, along with Stribey and Fairburn, on November 10th, and accepted as being correct, and the statement which defendants concede specified the amount they owed, were signed and delivered in plaintiff's place of business in Joplin, while the note was signed the day following in defendants' saloon in Webb City. It also is disclosed and goes unchallenged that the defendants objected to paying 8 per cent. interest as the note first provided, and insisted that the interest be only 5 per cent. This was finally agreed to, and one of the defendants changed the rate with his own hand from 8 to 5, and then the note was signed up and delivered. Neither do defendants challenge that plaintiff had often sought to collect this note, and that they made divers and sundry excuses, and at no time urged nonliahility until after suit was filed.

The defense belies itself. Defendants do not claim that they did not owe plaintiff, but urge that he, out of some generosity unexplained, some few days—a week, perhaps— before the note in suit was given, released and discharged...