Hurt v. Ford

CourtMissouri Supreme Court
Writing for the CourtBurgess
Citation142 Mo. 283,44 S.W. 228
PartiesHURT v. FORD et al.
Decision Date23 December 1897
44 S.W. 228
142 Mo. 283
HURT
v.
FORD et al.
Supreme Court of Missouri.
December 23, 1897.

NOTES — CONDITIONAL DELIVERY — PAROL EVIDENCE — STATUTE OF FRAUDS — PLEADING — TRIAL — JUDGMENT ON THE PLEADINGS — REFUSAL OF INSTRUCTIONS.

1. A motion for judgment non obstante veredicto will be treated as a motion for a judgment on the pleadings, where it contains the necessary averments for such a motion, and where the verdict had been set aside when the ruling on the motion was made.

2. A motion for judgment on the pleadings after verdict set aside must be determined by the record, and not by the evidence.

3. After the maker has delivered the note to the payee, parol evidence is inadmissible to show that the delivery was conditional upon the procurement of another signature.

4. A promise to save one signing a note as surety harmless, is a promise to answer for the default of another, within Rev. St. 1889, § 5186.

5. A plaintiff may avail herself of the statute of frauds by the general denial in her replication to an answer showing on its face that it sets out an oral contract within the statute.

6. Where defendants pleaded that their agent delivered the note in suit contrary to instructions not to do so until H. signed it, and there was evidence that they thereafter ratified his act, with knowledge that H. had not signed it, the court was justified in setting aside a verdict for defendants because of its refusal to charge that, if there was such a ratification, plaintiff could recover.

Barclay, C. J., and Macfarlane, J., dissenting.

In banc. Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by Julia G. Hurt against G. D. Ford and another. From a judgment for plaintiff, defendants appeal. Reversed in division (36 S. W. 671), and transferred to court in banc. Affirmed.

Beebe & Watson and R. T. Railey, for appellants. C. O. Tichenor and Peak & Ball, for respondent.

BURGESS, J.


This is a suit upon a negotiable promissory note for the sum of $8,500, dated on the 9th day of November, 1887, executed by defendants, and payable to the order of plaintiff on or before 12 months after its date. The material allegations of the petition upon which the case was tried are as follows: "Plaintiff, for her amended petition (leave of court having first been obtained), states that the said defendant Geo. D. Ford and the said defendant John R. Towers, under and by the name of J. R. Towers, on November 9, 1887, made, executed, and delivered to the plaintiff herein their certain promissory note, wherein they promised, for value received, to pay to the order of Julia G. Hurt, the plaintiff herein, on or before twelve months after date, the sum of eight thousand five hundred dollars ($8,500), at the National Bank of Kansas City, with interest from date thereof at the rate of ten per cent. (10%) per annum, which said note is herewith filed, and made a part of this petition. Plaintiff states that on November 14, 1888, the said defendants paid the sum of eight hundred and fifty dollars, in full of interest to November 9, 1888, which said sum is credited upon the back of said note; that on November 9, 1889, the said defendants paid the interest in full on said note to said date, and the same is credited upon said note; that the plaintiff is now the owner and holder of said note." The answer, omitting the formal parts, is as follows: "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,

44 S.W. 229

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." Plaintiff replied, denying all allegations in the answer, except as to facts alleged in the petition.

Plaintiff asked, and the court refused, the following instructions: "(8) The jury are instructed that,...

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32 practice notes
  • State ex rel. Gallagher v. Kansas City, No. 28663.
    • United States
    • United States State Supreme Court of Missouri
    • April 4, 1928
    ...him to the relief prayed for, and no evidence was introduced to the contrary. King v. Grover Co., 188 Mo. App. 239; Hart v. Ford, 142 Mo. 283; Dezell v. F. & C. Co., 176 Mo. John T. Barker, E.F. Halstead, Marcy K. Brown, Jr., and William H. Allen for respondents. (1) The overwhelming weight......
  • First Nat. Bank v. Dunbar et al., No. 22547.
    • United States
    • Court of Appeal of Missouri (US)
    • June 22, 1934
    ...the verdict plaintiff waives his right subsequently to file a motion for new trial. Meffert v. Lawson, 287 S.W. 610; Hurt v. Ford, 142 Mo. 283; King v. Grocer Company, 188 Mo. App. 235; Blodgett v. Koenig, 284 S.W. 505; McComas v. The State, 11 Mo. 116; Gill v. Farmers' & Merchants' Bank, 1......
  • State v. Trimble, No. 28710.
    • United States
    • United States State Supreme Court of Missouri
    • May 15, 1930
    ...v. Hainline (Mo. Sup.) 253 S. W. 1049; In re Devore v. Devore, 138 Mo. loc. cit. 185, 39 S. W. 68; Hurt v. Ford, 142 Mo. loc. cit. 301, 44 S. W. 228, 41 L. R. A. 823; Springer v. Kleinsorge, 83 Mo. 156. From all of which the deduction follows as a logical sequence that the Court of Appeals ......
  • Olson v. Ottertail Power Co., No. 6149.
    • United States
    • United States State Supreme Court of North Dakota
    • September 25, 1934
    ...judgment.” 15 R. C. L. p. 608, § 47. See, also, State v. Commercial Bank, 6 Smedes & M. (Miss.) 218, 45 Am. Dec. 280;Hurt v. Ford et al., 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823;Wheeler v. Preston et al., 107 S. W. 274, 32 Ky. Law Rep. 791;Yerkes v. Antrim Circuit Judge, 200 Mich. 443, 1......
  • Request a trial to view additional results
32 cases
  • State ex rel. Gallagher v. Kansas City, No. 28663.
    • United States
    • United States State Supreme Court of Missouri
    • April 4, 1928
    ...him to the relief prayed for, and no evidence was introduced to the contrary. King v. Grover Co., 188 Mo. App. 239; Hart v. Ford, 142 Mo. 283; Dezell v. F. & C. Co., 176 Mo. John T. Barker, E.F. Halstead, Marcy K. Brown, Jr., and William H. Allen for respondents. (1) The overwhelming weight......
  • First Nat. Bank v. Dunbar et al., No. 22547.
    • United States
    • Court of Appeal of Missouri (US)
    • June 22, 1934
    ...the verdict plaintiff waives his right subsequently to file a motion for new trial. Meffert v. Lawson, 287 S.W. 610; Hurt v. Ford, 142 Mo. 283; King v. Grocer Company, 188 Mo. App. 235; Blodgett v. Koenig, 284 S.W. 505; McComas v. The State, 11 Mo. 116; Gill v. Farmers' & Merchants' Bank, 1......
  • State v. Trimble, No. 28710.
    • United States
    • United States State Supreme Court of Missouri
    • May 15, 1930
    ...v. Hainline (Mo. Sup.) 253 S. W. 1049; In re Devore v. Devore, 138 Mo. loc. cit. 185, 39 S. W. 68; Hurt v. Ford, 142 Mo. loc. cit. 301, 44 S. W. 228, 41 L. R. A. 823; Springer v. Kleinsorge, 83 Mo. 156. From all of which the deduction follows as a logical sequence that the Court of Appeals ......
  • Olson v. Ottertail Power Co., No. 6149.
    • United States
    • United States State Supreme Court of North Dakota
    • September 25, 1934
    ...judgment.” 15 R. C. L. p. 608, § 47. See, also, State v. Commercial Bank, 6 Smedes & M. (Miss.) 218, 45 Am. Dec. 280;Hurt v. Ford et al., 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823;Wheeler v. Preston et al., 107 S. W. 274, 32 Ky. Law Rep. 791;Yerkes v. Antrim Circuit Judge, 200 Mich. 443, 1......
  • Request a trial to view additional results

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