Highleyman v. McDowell Motor Car Company

• Decision Date: 10 November 1919
• Citation: 216 S.W. 52,202 Mo.App. 221
• Parties: W. H. HIGHLEYMAN, Respondent, v. McDOWELL MOTOR CAR COMPANY, Appellant
• Court: Kansas Court of Appeals

216 S.W. 52

202 Mo.App. 221

W. H. HIGHLEYMAN, Respondent, v. McDOWELL MOTOR CAR COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 10, 1919

Appeal from Pettis Circuit Court.--Hon. H. B. Shain, Judge.

AFFIRMED (conditionally).

R. S Robertson for respondent.

Fyke & Snider and Fenton Hume for appellant.

OPINION

BLAND J.

This is an action in three counts. The first and second seek to recover the amount of two promissory notes executed by one O L. Boss to the McDowell Motor Car Company and by it endorsed to the plaintiff. Prior to this action the plaintiff brought suit on the same notes against Boss and the defendant herein in the circuit court of Pettis county, Missouri, where Boss lived, the Motor Car Company being a resident of Jackson County, Missouri. An agreement in writing was entered into between plaintiff, Highleyman, and the defendant, Motor Car Company, that if plaintiff dismissed that suit as to the latter and proceeded against the maker, Boss, alone, and should fail to recover against Boss for any reason that did not discharge the Motor Car Company, and thereafter desired to prosecute an action against the Motor Car Company on account of any rights accruing to him under said notes, he could do so and it would not be claimed as a defense thereto that a previous action had been brought against Boss to which the Motor Car Company was not a party, and that such subsequent action could be maintained in Pettis county. Plaintiff dismissed said suit as to the Motor Car Company and proceeded against Boss alone. The jury, however, found that there were certain equities existing between Boss and the Motor Car Company which discharged Boss and that plaintiff had knowledge of these equities when he purchased the notes. The jury returned a verdict for Boss and the judgment in his favor became final.

Thereupon, pursuant to the agreement aforesaid, plaintiff brought the present action against the defendant. Each of the notes was dated April 17, 1917, each was for the sum of $ 100. The note mentioned in the first count was due on September 1, 1917, and the one covered by the second count became due October 1, 1917. Each of said notes contained a provision that "in case suit is brought to enforce payment hereof we hereby agree to pay to the payee reasonable attorney's fee and such attorney's fee shall be included and taxed in the cost of suit." And each of said counts sought to recover also $ 50 as a reasonable attorney's fee for bringing the suits. The third count was to recover $ 38.95, the costs of the suit against Boss.

The defendant set up the other suit and the fact that judgment was therein rendered in favor of the maker whereby he was discharged and that the subjectmatter thereof was the same as involved herein and to which plaintiff herein was a party and that thereby plaintiff's rights concerning the subject-matter of that, and also of this, suit were finally fixed, adjudicated and determined, and that plaintiff was bound thereby, and the note and the maker thereof were discharged, and that by the same action this defendant was discharged and is not liable in this action.

The plaintiff, in reply, set up the agreement in writing heretofore mentioned. A jury was waived and the cause was tried by the court and a judgment rendered for plaintiff on all three counts, for $ 115 and $ 50 attorney's fee on each of the first and second counts and for $ 38.95 on the third count.

Defendant urges that the petition alleges that plaintiff took the notes from defendant as a mere assignee and that, therefore, the assignment gave plaintiff nothing more than the assignor received from the maker and as the assignor's interest in the notes was worthless (the Boss case showing that there were equities that discharged the notes) that plaintiff took nothing by the assignment whether or not he had notice of the equities. We need not pass upon the soundness of this contention for the reason that we think the petition by fair inference alleges that the notes were endorsed to plaintiff for value and without notice. The petition must be liberally construed after verdict. It alleges--

"That on the day of , 1917, defendant, the McDowell Motor Car Company, for a valuable consideration sold the said note to this plaintiff and duly assigned same on the back thereof said note with said assignment on the back thereof being attached hereto, marked Exhibit A and made a part hereof that said note among other things provided that the endorsers, sureties and guarantors severally waive presentment, demand, protest and...