Henderson v. Bondurant

• Decision Date: 31 January 1867
• Citation: 39 Mo. 369
• Parties: OSBORNE HENDERSON, Defendant in Error, v. CHARLES P. BONDURANT, EDW'D A. CARTER AND WILLIAM T. GILLIAM, Plaintiffs in Error.
• Court: Missouri Supreme Court

39 Mo. 369

OSBORNE HENDERSON, Defendant in Error,

v.CHARLES P. BONDURANT, EDW'D A. CARTER AND WILLIAM T. GILLIAM, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1867.

Error to Saline Circuit Court.

Adams and Shackelford, for Gilliam, plaintiff in error.

I. The note in dispute is void as to the defendant, Gilliam. It was originally a blank paper with the defendant's name on the back as endorser, and was intended to be filled up as a note, with his name as payee and endorser and not as maker, for the sum of only $200, which sum in figures was therefore originally inscribed on the left-hand top corner, indicating the extent of the authority given by the defendant Gilliam--Goodman v. Simonds, 19 Mo. 106; Hall et al. v. Bk. of the Commonwealth, 5 Dana, 258; Tate v. Hopkins et al., 7 Mo. 419; Sto. Prom. N. § 10.

II. As the plaintiff took the note with knowledge of the facts and of the extent of the authority given by Gilliam, it would have been void even if he had taken it in due course of trade for money advanced; but as he took it on account of a pre-existing debt due to him from Bondurant, and advanced no money, he would, without notice of the facts, be subject to all the equities existing between the original parties, and the note would be void in his hands as to the defendant, Gilliam--Goodman v. Simonds, 19 Mo. 106.

J. V. Turner, for defendant in error.

I. A party signing his name on the back of a note not payable or endorsed to him, becomes a maker--Powell v. Thomas, 7 Mo. 440; Lewis v. Harvy, 18 Mo. 74; 1 Pars. on Cont. 206; Schneider v. Schiffman, 20 Mo. 571.

II. The note in question has the same effect against Gilliam as if filled up before he signed it--Sto. Prom. N. § 122; 1 Pars. Cont. 205; 3 Kent, 89; Taylor v. Craig, 2 J. J. Marshall, 461; Chit. on Bills, 313 (9 Am. ed.) n. q.

III. Gilliam, by delivering the paper to Bondurant, signed in blank in such form that it was susceptible of being so filled up as to charge himself either as payer or endorser, held Bondurant out to the world as authorized to fill the blank in either way, as he might choose. The rule of law in such case authorized the instrument to be made as favorable to the innocent holder as its character would admit--18 Mo. 80; Broom's Leg. Max. 381.

IV. The allegation that Henderson knew of the alleged understanding between Gilliam and Bondurant being wholly unsupported, he is not affected by such understanding; and the paper having passed into the hands of an innocent holder for value, Gilliam cannot complain of the manner in which the blank was filled--Tumilty v. Bank, 13 Mo. 276; Farmers' Bk. v. Garten, 34 Mo. 119.

V. The simple fact of its being delivered blank implied that the terms of the note were not agreed on, and that the holder was entrusted with uthority to fill it up as he thought proper. If Gilliam did not intend to allow Bondurant any latitude, and was only willing to be liable as alleged, he was grossly negligent in not so fixing his liability by filling up the note before parting with it; and he, rather than an innocent holder, should suffer the loss-- Tumilty v. Bank, 13 Mo. 285; 2 Term R. 70; Broom's Leg. Max. 456.

VI. The figures in the margin were no part of the note; they had no controlling effect--Payne v. Clark, 19 Mo. 152, and authorities there cited.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought his suit against the defendants on a note for the sum of two hundred and fifty dollars. The note is payable to plaintiff, signed by Charles P. Bondurant and Edward A. Carter as makers, and endorsed in blank on the back by the defendant William T. Gilliam. The suit is instituted against all the defendants as makers of the note.

Bondurant and Carter filed no answer, and judgment by default was taken against them. The defendant, Gilliam, filed an answer, in which he substantially states, that Bondurant, who is the principal, brought to him a blank piece of paper, signed by Bondurant and Carter on the lower right-hand corner, and with the figures $200 on the upper left-hand corner, that Bondurant procured his endorsement on the back of the paper for the purpose of negotiating the same in one of the banks at Glasgow; that the figures $200, on the left-hand corner, indicated that the same was to be negotiated for two hundred dollars and the note filled up for that amount, he (Gilliam) to occupy the position of endorser; that he had no interest in the note or the proceeds, but only endorsed the same for the accommodation of Bondurant; that Bondurant took the blank note thus signed and endorsed, with the figures at the top, to Glasgow, and tried to negotiate the same in the banks at Glasgow, but did not succeed; that Bondurant was owing a precedent debt to the plaintiff for about three hundred dollars, and having failed to obtain a discount in the banks, he took the blank note with the figures $200 on the same and with defendant's endorsement on the back, and proposed to deliver the note to plaintiff in payment of the precedent debt to the extent the figures indicated, and to pay the balance in money, but that on examination of the amount due plaintiff from Bondurant it was found that Bondurant had not enough money to pay the balance, and that it was arranged between plaintiff and Bondurant to make the note for two hundred and fifty dollars instead of two hundred dollars, and that Bondurant himself (or the plaintiff with his consent) altered the figures $200 and made them $250; that defendant was not present at the time, and was never notified of the alteration and never consented to the same; and that Bondurant at the time of the negotiation with plaintiff informed him that he had obtained the endorsement of defendant on the paper...