Hurt v. Ford

• Citation: 44 S.W. 228,142 Mo. 283
• Parties: Hurt v. Ford et al., Appellants
• Decision Date: 18 January 1898
• Court: United States State Supreme Court of Missouri

44 S.W. 228

142 Mo. 283

Hurt v. Ford et al., Appellants

Supreme Court of Missouri

January 18, 1898

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

John W Beebe, I. N. Watson and R. T. Railey for appellants.

(1) The motion for judgment non obstante veredicto was filed out of time. It should have been made upon the rendition of the verdict and before the entry of judgment. At least it should have been made within four days after verdict. 2 Tidd's Practice, p. 920; Freeman on Judg., p. 7; State v Bank, 14 Miss. 215; Schermerhorn v Schermerhorn, 5 Wend. 514; Harrison v. Railroad, 11 C. B. 541. (2) This motion is never resorted to in connection with a motion for a new trial. 2 Tidd's Practice, 920. (3) The theory for the motion for judgment, notwithstanding the verdict, was that upon the whole record the defendant never could make out a better case, either by repleading or by new evidence. Such judgment never was rendered, except in a very clear case; the court had to be satisfied that it was impossible for the defendant to make a better defense, either in respect of pleading or proof. Pim v. Grazebrook, 3 M. & G. 863; Atkinson v. Davis, 11 M. & W. 236; 2 Tidd's Practice, 922; Schermerhorn, v. Schermerhorn, 5 Wend. 514; Bellows v. Shannon, 2 Hill, 86; Black on Judg. [1891 Ed.] 16; Bouvier's Law Dic., voc. judgment. (4) There was evidence to support the first count. That count states an original promise. Clark on Cont. 99; Thomas v. Cook, 8 B. & C. 728; (Overruled by Green v. Crosswell, 10 Ad. & E. 453.) Afterward followed in Wildes v. Dudlow, L. R. 19 Eq. 198; Monstephen v. Lakeman, L. R. 5 Q. B. 613; Wagon Co. v. MaClure, L. R. 19 Ch. Div. 478; Guild v. Conrad (1893) 2 Q. B. 885; Brown, Stat. Frauds, sec. 161, et seq.; George v. Hoskins, 30 S.W. 406; Winn v. Hillyer, 43 Mo.App. 143; Calkins v. Chandler, 36 Mich. 324; Clifford v. Luhring, 69 Ill. 401; Crawford v. Edison, 45 Ohio St. 239; Killbride v. Moss, 45 P. 812. (5) There was evidence to support the second count, and it states a good defense. A note may be placed in the hands of an agent or attorney as a technical escrow. He is a "third person," a "stranger unto the contract," and can only deliver upon performance of conditions imposed. He is the agent of both parties in such circumstances. 1 Shep. Touch. 59; Watkins v. Nash, 20 Eq. Cas. 262; Railroad v. Iliff, 13 Ohio St. 235; Dietz v. Farish, 12 Jones & Spencer, 190; Price v. Home Ins. Co., 54 Mo.App. 119; Bishop on Contracts, sec. 356; Ins. Co. v. Cole, 4 Fla. 359; Bank v. Bailasche, 65 Cal. 327; Friendly v. Lee, 25 P. 396; Humphreys v. Railroad, 13 S.E. 985; McLaughlin v. Wheeler, 47 N.W. 823. (6) The evidence tended to support the third count. Parol evidence is admissible to show the conditions on which the note was received. This character of evidence is received not to vary, etc., the contract, "but to show that no contract was in fact consummated." Pym v. Campbell, 6 El. & Bl. 370; 6 English Ruling Cases, 168; Guardhouse v. Blackburn, L. R. 1 P. & D. 115; Clark on Contracts, p. 572; Chitty on Contracts [11 Am. Ed.], p. 159; Nash v. Fugate, 32 Gratt. 595; Bell v. Ingestrie, 12 A. & E. (N. S.) 316; 2 Wharton on Ev. 927; Lindley v. Lacy, 17 C. B. 578; Wallis v. Littell, 11 C. B. N. S. 369; 31 L. J. C. P. 100; McFarland v. Sykes, 54 Conn. 250; Juliord v. Chaffee, 92 N.Y. 529; Reynolds v. Robinson, 110 N.Y. 654.

Peak & Ball and C. O. Tichenor for respondent.

(1) There are but two questions presented by the record in this case for the decision of the court. First. Did the trial court commit error in sustaining plaintiff's motion for a new trial? Second. Did the court commit error in rendering judgment for the plaintiff after a verdict had been returned for the defendants? (2) There are at least three errors in the ruling of the court, any one of which would have justified the court in setting aside the verdict. First. The court submitted the cause to the jury under the third count in defendant's answer on the theory that that count denied a delivery of the note. On this theory of the case it was undoubted error in the court to refuse plaintiff's instruction number 10. Second. The second error committed by the court was in refusing plaintiff's eighth instruction upon the subject of ratification. The question of ratification was distinctly raised by the pleadings. The plaintiff alleges in her petition that interest was paid, and this defendants admit, but in order to avoid the effect of the admission allege that the payments were made without the knowledge that the notes had not been signed by Hightower. Ellison v. Weathers, 78 Mo. 115; Snyder v. Adams Express Co., 3 Mo. 376; Boatmen's Savings Institute v. Forbes, 52 Mo. 201; Welsh v. Ferd Heim Brewing Co., 47 Mo.App. 608. Third. The third error committed by the court was its refusal to give plaintiff's instruction number 12. This instruction told the jury "that any statements Hightower may have made to the defendants or others to the effect that Mrs. Hurt would take up or pay said note given in 83 are not evidence in this case and the jury will not consider any such statements." (3) Whatever has been admitted on both sides in the pleadings can not be controverted in the subsequent pleadings by either party. McQuillin's Practice, sec. 272; Gould on Pleading, sec. 168, p. 141; Corler v. McCormick, 4 Col. 196. It stands confessed of record for the purposes of the trial. (4) Every allegation of a material fact in the petition, which is not denied in the answer, is deemed to be admitted. This is an inflexible rule in pleading. R. S. 1889, sec. 2049; Lee v. Casey, 39 Mo. 383; Kansas City Hotel Company v. Sauer, 65 Mo. 279; Marshall v. Ins. Co., 43 Mo. 586; Kenney v. Conifax, 34 Mo. 147; Wright v. Butler, 64 Mo. 165; Boone's Code Pleading, sec. 64. (5) The plaintiff in her amended petition alleges that the note in suit "was made, executed and delivered to her by the defendants." This is a material allegation, and it is nowhere denied in either count of the defendants' last amended answer. The unqualified and unconditional delivery of the note, therefore, stands admitted of record, and can not be retracted, contradicted or denied, either in the subsequent counts of the answer, or even by the verdict. Pike v. Martindale, 91 Mo. 286; Breckinridge v. Ins. Co., 87 Mo. 69; Weil v. Poston, 77 Mo. 284; Wilson v. Albert, 89 Mo. 537; Foley v. Alkire, 52 Mo. 317. (6) The delivery of a promissory note to the authorized agent of the payee is an absolute and unqualified delivery. Jones v. Shaw, 67 Mo. 670; Henshaw v. Dutton, 59 Mo. 139; Mossman v. Holscher, 49 Mo. 87; Railroad v. Stevens, 10 Ind. 1; Stewart v. Anderson, 59 Ind. 375; Wright v. Railroad, 16 Mon. 4; Claim v. Easterly, 118 Ind. 372; Duncan v. Pope, 47 Ga. 445; Scott v. Bank, 9 Ark. 36. (7) What in fact is this defense? No fraud; no mistake; no violation of any agreement; no equities between the parties to the paper interfered with by the suit, for Hightower never refused to sign this note; defendants never even asked him to do it. Whittemore v. Obear, 58 Mo. 286; Whittemore v. Nickerson, 125 Mass. 498. There never was but one doctrine upon this subject. Clough v. Holden, 115 Mo. 359; Sandorn v. Batchelder, 51 N.H. 434; Hunt v. Silk, 5 East, 449; Clarkson v. Mitchell, 3 E. D. Smith, 272; Burge v. Railroad, 32 Iowa 105. (8) For thirty-six years the law of this State has been, as stated by Judge Napton in Henshaw v. Dutton, 59 Mo. 139: "If a note is procured by fraud there is no doubt such defense is available. If it is given upon contingencies not expressed in it, the failure of such contingencies can not be set up as a defense to the note. It can not be given to the obligee as an escrow. Such delivery must be made to a third person, not the obligee. Parol evidence is not admissible to vary the meaning of the note." The doctrine has been cited with approval in the following cases: Smith's Adm'r v. Thomas, 29 Mo. 307; Mossman v. Holscher, 49 Mo. 87; State to use v. Potter, 63 Mo. 312; State to use v. Brown, 64 Mo. 167; Rodney v. Wilson, 67 Mo. 123; Jones v. Shaw, 67 Mo. 667; Gardner v. Mathews, 81 Mo. 627; State ex rel. v. Hewitt, 72 Mo. 603; State ex rel. v. Modrel, 69 Mo. 152; Whittemore v. Obear, 58 Mo. 286; Ayers v. Milroy, 53 Mo. 576; Smith v. Clark, 54 Mo. 77; Wolf v. Shaeffer, 74 Mo. 154.

Burgess J. Barclay, C. J., and Macfarlane, J., dissent.

OPINION

In Banc.

Burgess, J.

-- This is a suit upon a negotiable promissory note for the sum of $ 8,500, dated on the ninth day of November, 1887, executed by defendants and payable to the order of plaintiff on or before twelve 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, at the National Bank of Kansas City, with interest from date thereof at the rate of ten per cent 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...