Heman v. Francisco

• Decision Date: 14 November 1882
• Citation: 12 Mo.App. 559
• Parties: THEODORE HEMAN, RECEIVER, Plaintiff in Error, v. JOHN FRANCISCO ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

12 Mo.App. 559

THEODORE HEMAN, RECEIVER, Plaintiff in Error, v. JOHN FRANCISCO ET AL., Defendants in Error.

Court of Appeals of Missouri, St. Louis.

November 14, 1882

1. The name of the maker of a writing in the form of a promissory note cannot be supplied by parol evidence.

2. One cannot be held as a surety on an instrument which creates no primary obligation.

ERROR to the St. Louis Circuit Court, ADAMS, J.

Affirmed.

B. H DYE, for the plaintiff in error.

W BROWN and B. D. LEE, for the defendants in error.

OPINION

LEWIS P. J.

A paper, of which the following is a copy, is here sued on as a promissory note:--

" No. 25 ST. LOUIS, May 7, 1868.

One day after date, we, jointly and severally, … … . as principal, and John Francisco, J. B. Walsh & Co., Sam'l Willi, Wm. Vanzandt, as securit … , promise to pay to the Atlas Mutual Life Insurance Company of St. Louis, fourteen thousand four hundred dollars, for value received, negotiable and payable without defalcation or discount, with interest at the rate of … per cent per annum from maturity until paid. C. A. Mantz having executed his note with security, and being desirous of securing the same, hereby pledge as collateral security one hundred and eighty shares. And in default of payment of the said note, or any portion thereof, when the same is required to be paid by said company, … … .. hereby authorize said company to sell the same at public or private sale or otherwise, at its option, upon such default, without notice, and apply the proceeds to the payment of the above note; and said company is also authorized to use, transfer, or hypothecate the same at its option.

Witness: JOHN FRANCISCO.

J. B. WALSH & CO.

SAM'L WILLI.

$ … WM. VANZANDT."

The circuit court excluded this paper from evidence, on the grounds that it created no obligation upon the signers, and was void for every purpose. The plaintiff took a nonsuit, with leave, etc.

The ruling of the circuit court was unquestionably correct. The effect of the instrument must be gathered from what appears upon its face, and not from what might have appeared there, if the parties had done something more. We may properly understand from the word " securit-," as written or printed, that the parties mean to say " security." But we cannot interpret a blank space as meaning C. A. Mantz before the words " as principal," nor as meaning the signers, when their names are carefully inserted after those words, with the addition, " as securit-."

Still less could we transform another blank space, at the bottom of the instrument, into the signature of C. A. Mantz, or of any other person. It follows that, if it was intended that C. A Mantz, or any one else, should become a principal obligor, that intention was never consummated. It is patent that the signers intended to assume no obligation other than that of sureties for the...