Hunt v. Sanders
| Decision Date | 06 June 1921 |
| Citation | 232 S.W. 456,288 Mo. 337 |
| Parties | MRS. W. B. HUNT, Appellant, v. W. E. SANDERS |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Grant Emerson, Judge.
Reversed and remanded.
H. S Miller for appellant.
(1) Instruction 8, requested by the plaintiff and refused by the court, properly declared the law as held in Thompson v McCullough, 31 Mo. 224, and many decisions following. In fact, Sec. 851, R. S. 1919, is to the same effect, and we fail to understand why said instruction was refused. It was admitted in this case that the signatures were forged. It is not necessary for the plaintiff to show that the defendant forged the notes and deed of trust, in order to recover. It is not even necessary for the plaintiff to show that the defendant knew that the notes and deeds of trust were forged at the time they were negotiated. The law is that when a person sells a note as owner or agent for an undisclosed principal, he guarantees and warrants the signatures on the notes to be genuine regardless of what the facts may be as to forgeries or otherwise. Stewart v. Sparkman, 75 Mo.App. 109; Kinlen v. Street Ry. Co., 216 Mo. 163; McRue v. Railroad, 109 Mo. 582; Jackson v Railroad, 29 Mo.App. 495; Hannah v. Bayler, 27 Mo.App. 302; Meredith v. Wilkinson, 31 Mo.App. 1; Sawyer v. Drake, 34 Mo.App. 472. (2) Instruction B given at the instance and request of the defendant is clearly erroneous. If the evidence shows that defendant Sanders sold plaintiff the notes and deeds of trust in controversy, and that they were forged, then plaintiff makes out a prima-facie case. The burden of proof is not on plaintiff to show that the defendant was acting as agent for Wilgus. If the defendant was acting as agent for Wilgus, that is a matter of defense and no part of plaintiff's cause of action. Thompson v. McCullough, 31 Mo. 224; Sec. 851, R. S. 1919. Said section of the statutes covers this whole case, and clearly brands said Instruction B as erroneous. (3) Instruction C given by the court at the instance and request of the defendant, is not only erroneous but is also vicious. Some of the documents destroyed were the opinions given by Mr. Dewey as to the title of the land conveyed by the mortgages in question. The only evidence on this proposition is the evidence of the husband of plaintiff to the effect that he destroyed these opinions shortly after he got the loans and before he knew that the notes and deeds of trust were forgeries. There is no evidence to the contrary. As a matter of course, if Mr. Hunt knew nothing of the forgery at the time he destroyed the opinions, there would be no call for said instruction. Certainly a presumption could not arise against the interest of an individual in a matter of this kind unless he knew the facts. Said instruction is entirely too sweeping and vicious and is not based upon the law and the facts in this case, and is not justified from any viewpoint. In any event the documents destroyed should be material documents. The word material appears nowhere in the instruction. (4) Instruction D is wrong and ought to have been refused. The main issue in this case was as to whether or not the defendant sold the notes to plaintiff as owner or as agent for an undisclosed principal. There is no dispute but that the defendant negotiated the loans. The defendant himself admits that much. Said Instruction D practically cuts off all argument as to what the defendant Sanders may have said or told plaintiff or her husband at the time of the transactions. Clearly what the defendant Sanders may have said at the time of the transactions and at the time he delivered the notes to the plaintiff and received the checks therefor, is evidence, even though this suit is not based on a special warranty on the part of the defendant. (5) Instruction E, which is an instruction on the burden of proof, is erroneous. Thompson v. McCullough, 31 Mo. 224. (6) The court erred in permitting defendant to testify as to when he ascertained that Wilgus was engaged in the business of selling forged notes and deeds of trust. This evidence is wholly immaterial and yet highly prejudicial.
R. M. Sheppard for respondent.
(1) The appellant's next contention is that the court erred in giving Instruction B. This instruction told the jury that the mere fact that defendant sold the notes and deeds of trust in controversy to the plaintiff and that said notes were forgeries and therefore worthless was not sufficient to warrant the jury in finding the issues against the defendant. This instruction was in accord with the theory upon which the plaintiff tried this case and the instructions given on behalf of the plaintiff. Plaintiff was claiming that defendant owned the notes or that he sold them as the agent of an undisclosed principal. Plaintiff's petition had alleged a warranty upon the part of the plaintiff which could have been established either by proving an expressed warranty, or an implied warranty. Plaintiff's evidence discloses that there was an express warranty. This was denied by the defendant, defendant asserting that he had told plaintiff that he was selling the notes for Wilgus. Under this state of the record it was clearly necessary for the jury to find that the defendant sold the notes in question as owner or that he sold them as the agent of an undisclosed principal. These two phases of the case were covered by plaintiff's instructions, which required the jury to find that the defendant sold these notes to the plaintiff as owner or as the agent of an undisclosed principal. It was necessary for the jury to find that Sanders was either acting for himself or that he was acting for an undisclosed principal, and, all the facts having been disclosed, there was not any room for any presumption arising from the mere fact of sale. If there had not been any evidence as to what was said and done at the time of the sale there might be some merit in plaintiff's contention. But where all the facts appear, there is not any room for presumptions. Brannock v. Jaynes, 193 S.W. 55. (2) The evidence shows that the attorney's opinion in question was of vital importance, because if, as plaintiff contends, they were addressed to the defendant Sanders, that would have been almost conclusive proof that Sanders was the owner of the notes; upon the other hand, if the opinion respecting the title were addressed to Wilgus, this was at least a circumstance to show that Wilgus and not Sanders was the owner of the notes. Plaintiff had voluntarily destroyed these letters. Under all the authorities, Instruction C under this record was a proper instruction. Barker v. Pub. Co., 152 Mo.App. 717; Pomeroy v. Benton, 77 Mo. 87; Tracy v. Buchanan, 167 Mo.App. 438; Allomong v. People, 75 Mo.App. 280; Dooley v. Greening, 201 Mo. 343. (3) Instruction D was a proper instruction. The issues were whether or not there was an expressed or implied warranty by the defendant. The question as to whether or not the plaintiff or her husband relied upon defendant Sanders did not enter into the case. If Sanders sold the paper either as the owner or as agent for an undisclosed principal, he warranted the genuineness thereof, and the question as to whether or not the plaintiff relied upon his statement is immaterial. This instruction does not withdraw from the jury statements made by defendant as claimed by the appellant. This instruction simply told the jury that the question as to whether or not the plaintiff relied upon statements made by the defendant were immaterial. The latter part of the instruction withdrew from the jury the consideration of the evidence that the plaintiff did not have an attorney, for this question was wholly irrelevant to the issues in this case. The fact that plaintiff had or did not have an attorney did not prove or tend to prove or disprove the claim that defendant sold the note as owner or agent of an undisclosed principal. (4) The burden of proof is always upon the plaintiff. Instruction E is the ordinary instruction upon the burden of proof. Stofer v. Dunham, 208 S.W. 641. (5) It was certainly material in this case to know whether or not Sanders knew prior to the sale of the notes to the plaintiff that Wilgus was dealing in forged notes. It was perfectly proper, therefore, to show that he did not know Wilgus was engaged in the business of selling forged and duplicate notes until a long time after this transaction. The only two controverted issues in this case are whether or not the plaintiff sold the notes in question as the owner or as the agent of an undisclosed principal.
Appeal from the Circuit Court of Jasper County.
The plaintiff sued the defendant to recover the amount she paid him for certain forged negotiable notes, purporting to be secured by certain deeds of trust, also forgeries, which she claims defendant sold her, and which notes and mortgages the petition alleges, "purported to be and what defendant then warranted to be, and plaintiff relying on such warranty believed to be, good" and valid securities, but which were forgeries, and plaintiff lost her entire investment.
There were five counts in the petition, each arising out of the purchase of one of such notes.
The answer was a general denial.
That the notes and deeds of trust were forgeries was not seriously contested by defendant at the trial.
The plaintiff's evidence tended to prove the allegations in the petition, and to show that the plaintiff herself took no part in the purchase of the notes, but that her husband purchased them from the defendant, representing plaintiff as her agent.
Plaintiff's husband testified: That defendant showed him the real estate which was all in the City of...
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