Hunter v. Johnson

• Decision Date: 22 May 1906
• Citation: 119 Mo. App. 487,94 S.W. 311
• Parties: HUNTER v. JOHNSON.
• Court: Missouri Court of Appeals

94 S.W. 311

119 Mo. App. 487

HUNTER v. JOHNSON.

St. Louis Court of Appeals. Missouri.

May 22, 1906.

1. BILLS AND NOTES — DEFENSES AGAINST BONA FIDE TRANSFEREE — COLLATERAL AGREEMENTS.

It is no defense to an action on a note by the indorsee thereof that at the time of its execution it was agreed in writing between the maker and payee that the maker was not to pay any interest on the note, in the absence of proof that the indorsee had knowledge of such agreement.

2. SAME—PAYMENTS TO INDORSER.

It is no defense to an action by an indorsee in good faith for a balance due on a note that the maker made payment thereon to the indorser, unless the latter was by plaintiff authorized to collect the money, or plaintiff receive the benefit of it.

3. EVIDENCE — DEPOSITIONS — ADMISSIONS— PROOF AND EFFECT.

Where, in an action on a note, defendant had the benefit of part of certain depositions deemed by him to contain admissions favorable to his defense, plaintiff was entitled to the remainder of such depositions.

Appeal from Circuit Court, Taney County; Asbury Burkhead, Judge.

Action by H. F. Hunter against Adam Johnson. Judgment for defendant, and plaintiff appeals. Reversed.

R. C. Ford, for appellant. Price & McConkey, for respondent.

GOODE, J.

This action originated before a justice of the peace, went to the circuit court on appeal, was tried there anew, and an appeal taken from the judgment then given in favor of the defendant to this court. The action was on the following promissory note: "$500. Brown Branch, Mo., December 21st, 1892. Two years after date I promise to pay to D. F. Hunter, or bearer, five hundred dollars, for value received, negotiable and payable, without defalcation or discount, and with interest from date at the rate of 6% per annum. If the interest be not paid annually to become as principal, and bear the same rate of interest. Adam Johnson. Credits. October 12, 1895, $85.60; June 26, 1896, $273.60; Dec. 19, 1896, $98.77. Indorsed: D. F. Hunter." The defendant and D. F. Hunter, the payee of the note, were formerly partners in a mercantile business in Taney county, Missouri. After conducting the business for a year or two, they dissolved partnership, and settled their affairs in 1892. By the terms of the settlement Johnson became indebted to D. F. Hunter in the sum of $2,000, for which he executed to the latter four promissory notes of $500 each. The indebtedness arose from the purchase by Johnson of Hunter's interest in the partnership assets and good will. According to Johnson's testimony, the first of the four notes fell due in eight or nine months, the second in twelve months, the third in two years, and the fourth in three years. The note in suit is the third one. It passed into the possession of Harry Hunter (plaintiff), who is the son of D. F. Hunter, in the settlement of a partnership which had existed between them, and which was dissolved in 1894. This partnership succeeded the partnership between D. F. Hunter and Johnson. Subsequently Harry Hunter moved to St. Louis, and the business connection between him and his father in Taney county was dissolved. In the settlement the father turned over to Harry Hunter by indorsement the note in suit. The testimony of those men is that the indorsement was made in good faith, for a valuable consideration, and prior to the maturity of the instrument. There is little or no evidence to the contrary in the record. Harry Hunter swore he had been paid on the note no more than the credits which are shown above to have been entered on it, leaving a balance due. Johnson swore the full amount of this note had been paid by him, as well as the other three notes given to D. F. Hunter; but he wrote two letters to Harry Hunter, in one of which he practically admitted owing a balance on the note in suit: "Brown Branch, Mo., June 16, '99. Mr. H. F. Hunter, St. Louis, Mo.—Dear Sir: In regard to sending you some money, I cannot send it. I don't think you need to depend on it, for, as I told you, I will pay you every cent that is due you. As I am coming down there in Aug. or September, we will settle up then. Yours as ever, Adam Johnson." That letter was written in answer to a demand for further payment. Johnson explained the letter by saying he was in doubt about how he had made certain payments on this note, and wrote as he did in order to draw out of Harry Hunter a statement of what the latter claimed in regard to the balance on the note and the payments that had been made. Johnson testified that he sent D. F. Hunter $158 to pay the balance due on the note in dispute, and that this payment never had been credited, but that D. F. Hunter promised to send the note to him (Jo...