Harris v. Silverman

• Decision Date: 03 April 1911
• Parties: I. HARRIS, Respondent, v. L. B. SILVERMAN, Appellant
• Court: Missouri Court of Appeals

136 S.W. 23

154 Mo.App. 694

I. HARRIS, Respondent, v. L. B. SILVERMAN, Appellant

Court of Appeals of Missouri, Springfield

April 3, 1911

Appeal from Jasper Circuit Court.--Hon. Henry L. Bright, Judge.

Judgment affirmed.

H. W Currey, George V. Farris and W. J. Owen for appellant.

(1) Section 1729, R. S. 1909, provides that "every action shall be prosecuted in the name of the real party in interest except as otherwise provided in the next succeeding section." Sheridan v. Nation, 159 Mo. 27. (2) The woman, "I. Harris," the plaintiff in this case the evidence shows, paid nothing originally as considerations for the notes sued on; the contract was not made with her and was not payable to her but to H. Harris, under the name of I Harris, and the notes sued on were never assigned to her and she was not a party for whose use and benefit the notes were made, neither was she the party in whose name the notes were made, for they were made to H. Harris under the adopted name of I. Harris. In such case she cannot maintain the suit. Collock v. Emmert & Co., 43 Mo.App. 566; Chrisman-Sawyer Co. v. Mfg. Co., 168 Mo. 634; Dickey v. Porter, 203 Mo. 26. (3) "I. Harris," the woman, was not the trustee of an express trust within the purview of section 1730, (1st) because the contract was not made for her use and benefit; (2) she was not the person with whom or in whose name the contract was made. Banking Co. v. Mfg. Co., 168 Mo. 634. (4) The plaintiff, "I. Harris," the woman, sued upon a contract charging that it was made to her. The evidence showed the contract was made with H. Harris, doing business in the name of "I. Harris." She was permitted to recover upon a contract which was made between the defendant and H. Harris. This constituted a failure of proof. Valdheir v. Railroad, 71 Mo. 514; Smith v. Fordyse, 190 Mo. 1. (5) One party cannot be substituted for another even by amendment. Jordan v. Railroad, 105 Mo.App. 446; Paul v. School District, 36 Mo. 21; Thompson v. Allen, 86 Mo. 85; Hajek v. Society, 66 Mo.App. 568; Altheimer v. Tesucher, 47 Mo.App. 284; Courtney v. Scheehy, 38 Mo.App. 290.

F. B. Wheeler and Thomas & Hackney for respondent.

(1) The defendant by the execution of the notes to the plaintiff, estopped himself from denying the capacity or right of the plaintiff to become the payee in the notes and to exact payment thereof. 1 Daniel on Negotiable Instruments (4 Ed), sec. 93; Nicolay v. Fritchie, 40 Mo. 67; Snider v. Express Co., 77 Mo. 527. (2) The defendant, having by his negotiable promissory notes, promised to pay the amounts therein specified to the plaintiff, it could make no difference to him whether the money which he obtained on the notes at the time they were given, belonged to the plaintiff or to her husband, Henry Harris; and even had the money which the defendant received been the money of Henry Harris, he (Harris) had a perfect right to make his wife, the plaintiff, the payee and beneficiary in the notes, and the payment by the defendant of the notes to her would forever preclude Henry Harris from recovering the consideration of the notes. Nicolay v. Fritchie, 40 Mo. 67.

NIXON, P. J. Cox, J., concurs; Gray, J., having been of counsel, not sitting.

OPINION

NIXON, P. J.

This action was originally brought on six promissory notes, negotiable in form, executed by the defendant, L. B. Silverman, and M. B. Oshinsky, and payable to the order of I. Harris. The petition contained six counts. Plaintiff dismissed as to the second, third and fourth counts before the trial. A trial was had on the remaining counts before a jury which returned a verdict in favor of the plaintiff on the fifth and sixth counts for the principal sum of $ 3500. Defendant has appealed.

The petition was in the usual form, alleging the execution, maturity and non-payment of the notes. The answer contained, first, a general denial, and second, a plea of payment as to each of the notes in the fifth and sixth counts. There was no affidavit filed in the case denying the execution of the notes. The reply was a general denial.

On the trial, the testimony was voluminous on the question of payment. The verdict of the jury on that issue was against the appellant and no point is made in this court on that issue.

The only question presented for our consideration and on which the stress of the appeal is thrown, is as to whether I. Harris, the plaintiff, was the real party in interest so as to enable her to maintain the action.

At the trial, the plaintiff introduced the notes and rested. Defendant then called to the stand one Henry Harris who, on being asked if his name was I. Harris, answered that he was the husband of I. Harris; that I. Harris was the plaintiff and had brought suit on these notes. He testified, however, that for nineteen years he had been doing business under the name of I. Harris; that these notes were executed by the defendant and delivered to him. Then follows a mass of evidence as to how and where and when the notes were signed, the business relations of the several men who took part in a series of transactions extending over a number of years and in many places, the attempt to show payment, the destruction of notes, the accounts of Henry Harris as I. Harris in different banks; in all, a record of questions burdened with suspicion of fraud, and many reluctant, parrying answers on the part of the witness, Henry Harris, so widely known as I. Harris.

A prolonged discussion is not necessary to a determination of this case. It will be remembered that appellant placed Henry Harris on the stand and elicited the answers on which appellant bases his objection to the regularity of the judgment. Viewed from the standpoint of the substantial rights of the parties, seemingly this appeal is an effort to escape by the technicality route the payment of notes which appellant confessedly executed and for which he received full value and which the jury found have not been paid. At the very outset, appellant's witness, Henry Harris, stated that I. Harris was his wife, and that it was her suit, and that he was transacting the business as the agent of his wife, I. Harris. Whether or not this was true is not our function to decide; it was evidence brought into the record by the appellant. We have no doubt, after reading the evidence, that defendant thought he was dealing with the man whom he knew and had done business with as I Harris. Henry Harris testified as to the ownership of the notes in suit as follows: "Q. You said it belonged to you? A. I said nothing of the kind. Q. Who did you say it belonged to? A. I. Harris." And he stated...