Hurt v. Ford

• Court: Missouri Supreme Court
• Writing for the Court: Barclay
• Citation: 36 S.W. 671
• Decision Date: 30 June 1896
• Parties: HURT v. FORD et al.

36 S.W. 671 HURT
v.
FORD et al. Supreme Court of Missouri, Division No. 1. June 30, 1896.

NEGOTIABLE INSTRUMENTS — WHAT CONSTITUTES DELIVERY — RATIFICATION — EVIDENCE — STATUTE OF FRAUDS.

1. Where a note, complete in form, but incomplete in fact, because of the lack of a signature necessary thereto, was placed in the possession of the payee with a condition that the signature lacking should be added before the note should become valid, the payee could not afterwards, in default of the signature required, treat the note as delivered, and thereby fix the liability of the other signers.

2. The inference that a note was delivered, which arose from its possession by the payee, may be counteracted by proof that the delivery was based on some contingency that had not happened.

3. In an action upon a note, where the defendants pleaded an oral agreement releasing them from liability, the plaintiff, by failure to plead the statute of frauds in his reply, is estopped from resorting thereto to avoid the agreement.

[36 S.W. 672]

4. In an action upon a note, where the defendants pleaded that there had been no delivery, it appeared that the note had been placed in the hands of a third party, to procure the signature of H. thereto, under the condition that it should not be delivered until such signature was obtained; that it had been turned over to plaintiff's agent with notice of the condition, and had been by such agent delivered to plaintiff without the required signature. There was some testimony that defendants had approved of the delivery. Held, that it was error to refuse to instruct the jury that if defendants, knowing that the note had not been signed by H., approved and adopted the act of the agent in making delivery thereof, they would be liable.

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

[36 S.W. 673]

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...