Hugumin v. Hinds

• Decision Date: 10 June 1902
• Citation: 97 Mo. App. 346,71 S.W. 479
• Parties: HUGUMIN v. HINDS et al.
• Court: Missouri Court of Appeals

71 S.W. 479

97 Mo. App. 346

HUGUMIN v. HINDS et al.

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

BILLS AND NOTES—TRANSFER—INDORSEMENT — AUTHENTICITY — ACTION BY INDORSEE— EVIDENCE—QUESTION FOR JURY—APPEAL— RECORD—BILL OF EXCEPTIONS—FILING—EXTENSION OF TIME — NEW TRIAL — CONTINUANCE—PRESUMPTION ON APPEAL—WITNESSES — CREDIBILITY — UNCONTRADICTED EVIDENCE.

1. In an action by an indorsee on a negotiable note, where it was denied that plaintiff was a bona fide purchaser for value, the admission of the indorsement of the payee in evidence, without proof of its authenticity, over defendant's objection, was error.

2. An admission of the execution of a negotiable note in an action by the indorsee did not constitute a waiver of proof of the indorsement.

3. Where, in an action on a negotiable note for $150 by an indorsee, it was denied that the plaintiff was an innocent holder for value, and plaintiff, as a part of his case, testified to his purchase of the paper, and that he had paid $100 therefor, during the month of January, 1899, by check on a certain trust company, and made no previous inquiry as to defendant's financial standing, and had no talk or understanding with the payee as to the collection of the note, etc., the question of the credibility of his evidence as to the indorsement of the note to him was for the jury.

On Rehearing.

4. Where a statement of the circuit clerk, setting forth the record on an appeal, recited that "on the 17th day of April, 1901, defendants filed their bill of exceptions in this cause," after which followed the bill of exceptions, and at the close of the transcript the clerk certified that the foregoing was a true and complete copy of the judgment, motion for new trial, affidavit for appeal, and "all orders and motions affecting the same, in the case (citing its title), the record contained a sufficient showing of the filing of the bill of exceptions.

5. Where the record on appeal did not show that when the bill of exceptions was filed the term at which the motion for new trial was overruled and the appeal was taken had expired, it could not be presumed that the term had been adjourned, and therefore that the record was insufficient, for failure to show an extension of time in which to file the bill of exceptions.

6. It is not necessary that a record on appeal should show an order of continuance of the motion for a new trial from the term at which it was filed to that at which it was overruled, such continuance being presumed.

7. The credibility of oral testimony on a disputed issue of fact is for the jury, though the testimony is not contradicted.

Appeal from circuit court, Laclede county; L. B. Woodside, Judge.

Action by E. U. Hugumin against George H. Hinds and another. Judgment for plaintiff. Defendants appeal. Reversed.

Mayfield & Mayfield, for appellants. J. P. Nixon and H. A. Loevy, for respondent.

BARCLAY, J.

This action was begun in July, 1899, by plaintiff against the two defendants in the circuit court of Laclede county, Mo. It is founded on the following instrument: "$150.00. Lebanon, Mo., Oct. 19th, 1898. Six months after date, we, each as principals, promise to pay to the order of D. F. Hulbert, manager Genille, of 923 Olive street, St. Louis, Mo., one hundred and fifty dollars, for value received, negotiable and payable, without defalcation or discount, at the Bank of Lebanon, in Lebanon, Missouri, with interest from date at the rate of eight per cent. per annum until paid, and, if interest be not paid annually, to become as principal, and bear the same rate of interest. Hinds and Weissgerber." The indorsements on the paper are as follows: "D. F. Hulbert. For collection for account of E. U. Hugumin & Co." The petition charges that defendants promised by their said note to pay said sum, as therein expressed, and that said Hulbert, before maturity thereof, for value received, assigned and delivered said note to plaintiff. Then follow allegations of demand, nonpayment, and protest, whereby protest fees accrued to plaintiff, and a prayer for judgment for $150, with interest and protest fees. The answer denies the petition generally, except the execution of the note, and then charges that the only consideration for the instrument arose from these facts: "That they executed the note sued upon to one D. F. Hulbert, as manager for one Genille, of St. Louis, Mo., the payee of said note, and that the same was given upon the following conditions, and the only consideration of said note was that the said Genille or his agent, D. F. Hulbert, was to furnish these defendants one thousand stamps and folders, known as `Genille Stamps and Folders,' with full instructions as to their redemption; and it was expressly stipulated by and between these defendants and the payee of said note that, for and in consideration of this defendants' signing and giving said note herein sued upon, that they would keep and maintain a good and competent photographer in Lebanon, Mo., to redeem said stamps, by making and forwarding them to St. Louis, Mo. Defendants, further complaining, say that it was expressly understood by and between the payee of said note and these defendants that, for and in consideration of said note herein sued upon, that when said stamps were forwarded to said Genille, at St. Louis, Mo., the same were to be redeemed by said Genille with suitable prints and photographs, to be furnished in their patent statuary photography, and then returned to the defendants free of any charge or expense whatever. Defendants state and represent that in each and every particular the payee of said note failed, refused, and neglected to comply with the agreement and consideration for which said note was given; that they failed and refused to deliver a sufficient number of folders for said stamps, as agreed and expressly stipulated as a part of the consideration of the note herein sued on. Defendants say that they failed, neglected, and refused to establish a redemption agency in Lebanon, Mo., as expressly stipulated, and as a part of the consideration of the defendants signing and giving said note herein sued upon. Defendants further say they failed, refused, and neglected to make and forward to these defendants suitable prints, or any prints at all, or photographs, as expressly stipulated, and as a part of the consideration of said note. Defendants, in answering, further aver that said note was obtained by fraud, and that the consideration of said note entirely failed, and that the same was not bona fide purchased by the plaintiff, but is a conveyance by and between the payee of said note and plaintiff herein to cheat and defraud the defendants out of their just rights in the premises. Wherefore defendants pray to find said note void and for naught held, and that they be discharged, with costs." The cause coming on for trial before the learned circuit judge and a jury, plaintiff read the note and indorsements in evidence, despite objection by counsel for defendants on the ground that the indorsements had not been proved. Plaintiff then testified that he lived in St. Louis; was a pawnbroker; had known the payee, Mr. Hulbert, about eight years; saw this note about three months after it was made, when he bought it for $100 from Hulbert, whose signature to the indorsement is thereon; that he (plaintiff) was the owner. He further stated as a witness that he and Mr. Hulbert occupied parts of the same business building; they had adjoining stores on the ground floor of 923 Olive street, St. Louis, where plaintiff had been in business about two years, and Mr. Hulbert for a longer time. Plaintiff testified that he bought the note in suit with a check on the Union Trust Company; that he made no previous inquiry about the financial standing of defendants; bought no other notes of him; had had no talk with Mr. Hulbert about the pending suit; had no understanding with him about the expenses thereof; had made no demand on him to pay the note; did not ask anything about what the note was given for; never heard of any failure of consideration of the note; had not abandoned his claim against Mr. Hulbert as indorser. Plaintiff introduced in evidence the check for $100, which he had described as given for the note in suit. The foregoing is an outline of the substance of the plaintiff's case. The defendants gave testimony tending to show a failure of consideration for the note between them and the payee. It does not seem necessary to mention the particulars...