Herndon v. Lewis

• Decision Date: 27 May 1903
• Citation: 74 S.W. 976,175 Mo. 116
• Parties: HERNDON, Appellant, v. LEWIS
• Court: Missouri Supreme Court

74 S.W. 976

175 Mo. 116

HERNDON, Appellant, v. LEWIS

Supreme Court of Missouri, First Division

May 27, 1903

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Affirmed.

Dickson Smith & Dickson and Douglas W. Robert for appellant.

(1) Where a motion for new trial is granted on the ground that the verdict is against the weight of the evidence, such action will not be sustained where it plainly appears that injustice has been done or the discretion of the trial court has been unsoundly or arbitrarily exercised. Parker v Cassingham, 130 Mo. 348; Bank v. Wood, 124 Mo. 76; Van Liew v. Barrett Co., 144 Mo. 509; Taylor v. Railroad, 163 Mo. 183. (2) One who places his name upon the back of a promissory note, not being a payee therein, before its delivery to the payee, becomes thereby a co-maker, unless prior to the signing and delivery of the paper there was an express agreement between him and the payee that his obligation should be that of indorser or something other than that of a maker. Otto v. Bent, 48 Mo. 26; Cahn v. Dutton, 60 Mo. 297; Rossi v. Schawacker, 66 Mo.App. 68; Schmidt Malting Co. v. Miller, 38 Mo.App. 254; Boyer v. Boogher, 11 Mo.App. 132; Mammon v. Hartman, 51 Mo. 168; Kingman & Co. v. Cornell-Tebbetts M. & B. Co., 150 Mo. 282; Adams v. Huggins, 73 Mo.App. 140; Malone v. Fidelity & Casualty Co., 71 Mo.App. 1.

John H. Overall and Carter & Sager for respondent.

(1) Where a motion for a new trial is granted on the ground that the verdict is against the weight of the evidence, such action will be sustained unless it plainly appears that great injustice has been done, and that the discretion of the trial court has been unsoundly and arbitrarily exercised. Bank v. Wood, 124 Mo. 72; Parker v. Cassingham, 130 Mo. 348; Van Liew v. Barrett Co., 144 Mo. 509; Taylor v. Railroad, 163 Mo. 185; McKay v. Underwood, 47 Mo. 185; Bourghman v. Fulton, 139 Mo. 557; Bank v. Armstrong, 92 Mo. 265; Eidemiller v. Kump, 61 Mo. 340; Reid v. Ins. Co., 58 Mo. 421; Cosgrove v. Leonard, 134 Mo. 419. (2) If the order granting the new trial can be sustained, either for the reason given, or upon any other of the grounds stated in the motion, the action of the trial court must be sustained. Ittner v. Hughes, 133 Mo. 679; Hewitt v. Steele, 118 Mo. 463; Bank v. Wood, 124 Mo. 72.

Dickson, Smith & Dickson and Douglas W. Robert for appellant in reply.

(1) The party relying on payment to stop the statute of limitations must not only establish that it was made, but made by the authority of the defendant. Regan v. Williams, 88 Mo.App. 586; Goddard v. Williamson's Admr., 72 Mo. 133; Phillips v. Mahan, 52 Mo. 197; Gardner v. Early, 78 Mo.App. 346. (2) If payment be made by authority of one of the makers of a note during the life of the note, it is a complete avoidance of the bar of the statute of limitations as to all of the makers of the note or those jointly liable thereon. Kemble v. Logan, 79 Mo.App. 253.

MARSHALL, J. Robinson, J., absent.

OPINION

MARSHALL, J.

This is an appeal by the plaintiff from an order entered by the circuit court, granting the defendant a new trial upon the ground that the verdict was against the weight of the evidence.

The action is upon a promissory note, dated June 15, 1885, for $ 8,950, payable at one year, to the order of the plaintiff, and made by B. W. Lewis. The name of the defendant, Turner T. Lewis, was written on the back thereof before its delivery to the payee. The answer is a general denial, with special defenses: first, that it was agreed between plaintiff and defendant at the time the note was executed that the defendant should be liable only as an accommodation indorser, and that no notice of demand and refusal to pay was ever given to the defendant, and the note was never protested for non-payment; and, second, the ten-year statute of limitations. The petition alleges a payment on the note by B. W. Lewis, of $ 1,231.58, on February 25, 1886, and another payment on the note by B. W. Lewis of $ 25 on February 1, 1892.

The evidence of the plaintiff's son who went to Colorado in 1892 for his father, to collect the note, is that he told B. W. Lewis that the note was about to be barred by limitation, and asked him to make a payment to keep it alive; that B. W. Lewis said he was wholly unable to pay anything, but said Lewis said, "I will authorize you to make a payment for me of $ 25 to keep the note alive;" that thereupon he returned to Springfield, Missouri, and handed his father, the plaintiff, twenty-five dollars, and indorsed the payment on the note. B. W. Lewis, who testified for the defendant, corroborates this, except that he says he authorized him to make a credit of twenty-five dollars on the note, and did not say he authorized him to make a payment on the note, but he says he did it with the understanding that it would prevent the statute of limitations from running against the note. It appears that no demand was ever made on B. W. Lewis by Herndon, the son, for the twenty-five dollars, and it has never been repaid.

Touching the defense of an agreement that the defendant should be liable only as an accommodation indorser, the defendant testified: "Q. State the circumstances attending the loan and the execution of the note; what was said at the time between the parties, and what was said by you, if anything? A. Mr. B. W. Lewis stated to me that he could borrow $ 8,950 from Capt. Herndon for a year in case I would become his indorser, and I told him I would.

"Q. Was Capt. Herndon present? A. I do not know whether Capt. Herndon heard the conversation or not, but he was in the room.

"Q. Now state at the time of the note what was said? A. I do not know that there was anything more said; the note was indorsed and handed to Mr. B. W. Lewis."

Touching this defense the plaintiff testified as follows:

"Q. Will you go on and state what took place between you and Ben W. Lewis at the time the note was made? A. When this note was made Ben Lewis came to me and said: 'I want to get all the money I can to get out of trouble.' I said: 'What can you give?' and he said: 'I will give T. T. Lewis as security.'

"Q. Go ahead? 'Give Turner as security?' A. 'T. T. Lewis,' and I said, 'that will do, I will let you have all that I have got, $ 8,950,' and he took it all.

"Q. You gave him that amount of money? A. Yes, sir.

"Q. Did you see the note signed by Mr. Lewis? A. Yes, sir.

"Q. I will ask you what he did with it after he had signed it? A. He gave me the note.

"Q. When was the name on the back of it put on there, if you know? A. It was done at the time, before he gave me the note.

"Q. By whom? A. Turner Lewis.

"Q. Did you have any talk at that time with Turner Lewis about signing the note? A. No, sir.

"Q. Respecting the signing of the note? A. No, sir.

"Q. Did you have any understanding, or agreement or talk of any kind or character with Turner Lewis respecting his signing that paper? A. No, sir."

On cross-examination the plaintiff testified as follows:

"Q. What did you say that Mr. Lewis told you that he would do if you would let him have the money? A. He says, 'I will give you T. T. Lewis as security-indorser.'

"Q. What was that last word you used? A. He meant security.

"Q. I don't care what he meant; what did you say he said? A. I guess I made a mistake in that.

"Q. What did you say? A. I said security.

"Q. What is the other word you used? A. I don't know.

"Q. Didn't you use the word 'indorser' just now? A. I think I did.

"Q. Just now? A. Yes, sir.

"Q. Why do you tell me you used security? A. I thought it meant the same.

"Q. You knew that I was asking you for that word, didn't you? A. No, sir.

"Q. You didn't? A. No, sir.

"Q. You would not repeat it again to the jury? This is your signature (handing paper to witness), is it not? A. Yes, sir; that is mine.

"Q. That is your deposition; you read it and signed it? A. Yes, sir.

"Q. When your deposition was taken, I will ask you if this question was asked you? 'Now, state under what circumstances -- just state now what occurred between you and Mr. Lewis at the time of the loaning of this money?' A. Which Mr. Lewis?

"Q. You know who you loaned the money to? A. I know. B. W. Lewis.

"Q. You signed that deposition? A. I know it.

"Q. The question was asked you, 'Just state now what occurred between you and Mr. Lewis at that time of the loaning of this money?' I will ask you if this is your answer; 'Well, Mr. Lewis was -- very well -- if I understand it right, in the Meramec Iron Mining Company, I think that was it, and he says, "I want you to let me have all the money you can, and I will get Turner's indorsement." I think that was what he operated, a mine, I am not sure about it, and he wanted money, and I let him have it with Turner's indorsement, and I let him have all the money I had;' did you swear to that? A. Yes, sir.

"Q. Was this question asked you, and was this answer made by you? 'He told you that he wanted you to help him out? A. He says, "I will get Turner for an indorser." I says, "all right," and I handed it over?' A. Yes, sir; that is right.

"Q. That is what occurred when the conversation was had between you and Mr. Lewis? A. That is it."

At the request of the plaintiff the court instructed the jury as follows:

"If the jury believe under the evidence that the note sued on was signed by B. W. Lewis, and that thereafter defendant, Turner T. Lewis, without any understanding or agreement with the plaintiff respecting the indorsement of said note by him wrote his name on the back thereof, and that thereafter the said note without any such understanding or agreement was delivered to plaintiff, they are instructed that defendant is a maker of said note, and not an accommodation indorser,...