Appeal from circuit court, Jackson county; J. H. Slover, Judge.
Action by Julia G. Hurt against George Ford and J. R. Towers to recover a balance due on a promissory note. There was a judgment for plaintiff, and defendants appeal. Reversed.
The defendants appeal from an order which granted plaintiff a new trial after a verdict for defendants, and also sustained a motion for judgment for plaintiff notwithstanding the verdict. The answer on which the case was tried is as follows (omitting caption and signature):
"Defendants, for their second amended answer to plaintiff's amended petition, admit they signed the note as set forth in plaintiff's petition; admit the same was delivered to plaintiff by one R. L. Yeager, as hereinafter set forth; admit defendants made payments as set forth in petition; and for affirmative defenses to said note defendants aver: First. That said note was signed by defendants, solely for and on account and in renewal of a certain promissory note, in words and figures following, viz.: `Kansas City, Mo., May 9th, 1883. No. 21,950. Six months after date we promise to pay E. K. Thornton, cashier, or order, at the Bank of Kansas City, eight thousand and five hundred dollars, for value received, with interest from maturity at the rate of ten per cent. per annum. $8,500. M. R. Hightower. T. R. Towers. Geo. D. Ford.' Defendants further aver that the said promissory note last mentioned was given under and by virtue of the following agreement and arrangement, to wit: The said M. R. Hightower, principal in said last-mentioned note, made application to the plaintiff in the spring of 1883 for a loan of $8,500 to enable him to purchase a herd of cattle. Plaintiff not then having the ready sum to make said loan, and being desirous to assist said Hightower, who was her brother-in-law, requested said Hightower to procure the defendants to sign a note, with said Hightower as principal, to the Bank of Kansas City, for $8,500, and then and there requested, authorized, and empowered said Hightower to state to the defendants, in order to induce them to become signers on said note, that she would take up said note when it should become due, and save defendants harmless from its payment. Defendants aver that, in pursuance thereof, said request and authority, said Hightower requested defendants to sign said note, stating to them that plaintiff had requested him to say, for her, that if they would sign said note, and thus enable him to get the money from the bank, she would take up said note when due, and they should be held harmless from its payment. Defendants further aver that, by reason of such statements and agreement, and relying on the same, they were induced to and did sign said note with said Hightower, and that plaintiff, in pursuance of said agreement above stated and communicated to the defendants, came into possession of said note, the same being turned over to her as an asset of the estate of her deceased husband, and became her property, and by her act in that behalf defendants became and were released from all liability on said note, and the same became as to them null and void, and plaintiff is now estopped from maintaining any action upon the note given in renewal thereof. Wherefore defendants aver that the note described in plaintiff's petition was and is wholly without consideration, and plaintiff ought not to have and maintain her action upon the same. For a second defense, defendants aver that the note described in plaintiff's petition was not only without consideration, as alleged in this answer, but that it is and was of no validity in law, in that it was placed in the hands of one R. L. Yeager, who was at the time the duly-authorized agent of the plaintiff, in escrow, with the direction that it was to be delivered by him to plaintiff, and have effect as a valid obligation, only upon condition that one M. R. Hightower, for whose benefit the instrument was signed, should be procured also to sign the same, and said Yeager received said note charged with such directions and conditions. And defendants further aver that said Hightower was never procured to sign, and never did sign, said note, but, without the knowledge of defendants, or either of them, the said Yeager delivered said note to the plaintiff; that at the time the note in suit was placed in the hands of said Yeager, said Yeager turned over to one Towers the note first above described, and said Towers turned the same over to the defendants; that the knowledge that said Hightower had not signed said note came to the defendants since the commencement of this suit, and the payments thereon were made without the knowledge that the note had been delivered to said plaintiff by said Yeager, contrary to said instructions given to him as aforesaid, and so defendants do herewith tender into court, for plaintiff, the promissory note first above described, and pray judgment. For a third defense, defendants aver that the note described in plaintiff's petition was and is, not only without consideration, as first alleged in this answer, but that it was and is of no validity in law, for it was understood and agreed, between
defendants and one M. R. Hightower, that said Hightower, for whose benefit the said notes were given, should also sign the note in suit, and in pursuance of said understanding said note, after it had been signed by the defendants, was handed by them to their agent, one Maj. Towers, with instructions for him to obtain said Hightower's signature upon the same before delivery thereof, but the said agent, not being able to find said Hightower, took the said note to the said R. L. Yeager, who at that time was the attorney and duly-authorized agent of the plaintiff, and delivered the same to him, at the same time disclosing to said Yeager the instructions he had received from defendants as aforesaid, and the said Yeager, thus having notice of the instructions so given to defendants' agent, received said note charged with said notice, and, without further authority from the defendants, or either of them, delivered said note to plaintiff without obtaining the said Hightower to sign the same. And defendants aver that said Hightower was never procured to sign, and never did sign, said note. Defendants further aver that, at the time the note in suit was placed in the hands of said Yeager, said Yeager turned over to said Maj. Towers the note first described, and said Towers turned over the same to the defendants, who herewith tender into court, for plaintiff, the same. They further aver that the knowledge that said Hightower had not signed the note came to defendants since the commencement of this suit, and the payments thereon were made without the knowledge that said note had been delivered to plaintiff by said Yeager contrary to the notice and instructions given him as aforesaid."
Instructions: The eighth and tenth requests for instructions by plaintiff, denied by the court, are as follows: "(8) The jury are instructed that, although the witness Towers delivered the note in suit to witness Yeager in violation of the instruction of defendants, and although he communicated his instructions to witness Yeager at the time of such delivery, yet, if the jury find and believe, from the evidence, that after said delivery, and after having knowledge that Hightower had not signed said note, defendants approved and adopted as their own the act of said Towers in making said delivery to said Yeager, the verdict should be for the plaintiff." "(10) The court instructs the jury that if they find from the evidence, that the note in suit was delivered by W. A. Towers, as agent for the defendants, to R. L. Yeager, without imparting to him notice that he had been instructed by the defendants not to deliver the note to him until he had secured the name of Hightower thereon, then such delivery was valid and binding, and you must find for the plaintiff in the sum of $8,500, with interest thereon at the rate of ten per cent. per annum from November 9, 1889; and this you must do, although you may believe that defendants may have instructed him not to deliver said note until he had secured the name of Hightower on said...
