John Stewart & Co. v. Andes
| Decision Date | 06 February 1905 |
| Citation | 84 S.W. 1134,110 Mo.App. 243 |
| Parties | JOHN STEWART & CO., Appellants, v. JACOB A. ANDES, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Holt Circuit Court.--Hon. A. D. Burnes, Judge.
AFFIRMED.
Order affirmed.
T. C Dungan, H. M. Dungan and H. G. Hempstead for appellant.
(1) The jury was not mislead by the instructions. (a) We find many decisions where one word is used for another--"plaintiff" for "defendant" is the most usual. Trustees v. Hoffman, 95 Mo.App. 497; Bank v. Goddard, 8 Mo.App. 596; O'Callaghan v. Bode, 24 P. 271; Shortelle v. St. Joseph, 104 Mo. 121; Lin v. Railroad, 10 Mo.App. 134; Railroad v. Merritt, 47 S.E. 908; Nichols & Shepard v. Metzger, 43 Mo.App. 615. (b) Then again instructions must be construed in their entirety. McKeon v. Railroad, 43 Mo. 407; Liese v. Meyer, 143 Mo. 560; Moore v. Sanborin, 42 Mo. 493; Crawford v. Doppler, 120 Mo. 367; Cooper v. Johnson, 81 Mo. 490. (c) "To warrant a reversal, there must be positive error, such as in our opinion materially affects the merits of the action." Haniford v. Kansas City, 103 Mo. 183; R. S. 1899, sec. 865, and cases cited; Grady v. Transit Co., 102 Mo.App. 216; Woody v Railroad, 78 S.W. 658; Kitchen v. Railroad, 59 Mo. 520; Tetherow v. Railroad, 98 Mo. 85. (2) The verdict was manifestly for the right party. Nelson v Foster, 66 Mo. 384; Wagner v. Electric Co., 177 Mo. 60; Noble v. Blount, 77 Mo. 239, cited and approved in Sherwoods v. Railroad, 132 Mo. 346 citing R. S. 1899, sec. 865, and cases cited; also in Methudy v. Ross, 81 Mo. 482; Johnson v. Railroad, 20 N.Y. 65; Smith v. Railroad, 29 Barb. 132; Potter v. Hopkins, 25 Wend. 417; 14 N.Y. 893; Pasley v. Kemp, 22 Mo. 411; Otto v. Bent, 48 Mo. 27, cited and approved in Delaney v. Bowman, 82 Mo.App. 259; Wells v. Zallee, 59 Mo. 509; Desberger v. Harrington, 28 Mo.App. 638; Frick v. Railroad, 75 Mo. 595; Commiskey v. McPike, 20 Mo.App. 84; Fitzgerald v. Barker, 96 Mo. 666.
John Kennish and J. W. Stokes for respondent.
(1) Most of the authorities cited in appellants' brief and the arguments made, are not in point, for the reason that said authorities are cases in which a reversal was sought of the judgment of the court in overruling the motion for a new trial, on the ground of alleged error in instructions. This appeal is from a judgment sustaining the motion for error in instructions. The law is not the same in each case. Bunyan v. Railroad, 127 Mo. 22; Ittner v. Hughes, 133 Mo. 692. (2) Plaintiffs' instruction numbered 1, was misleading and erroneous. Hahn v. Bradley, 92 Mo.App. 399. (3) Error is presumptively prejudicial. Morton v. Heidorn, 135 Mo. 618; McVey v. Barker, 92 Mo.App. 507; Walton v. Railroad, 40 Mo.App. 550; Baer, Seasongood & Co. v. Lisman, 85 Mo.App. 320. (4) Plaintiffs' instructions numbered 4, 5 and 6 are erroneous, for the reason that each covers the whole case and authorizes a finding for plaintiff without reference to the issues presented by the defense. Carder v. Primm, 60 Mo.App. 423; Hohstadt v. Daggs, 50 Mo.App. 240. (5) The jury were instructed that to defeat their right to recover, plaintiffs must have had actual knowledge of the specific facts of the fraud. They were not instructed that such knowledge could be inferred from the facts and circumstances. Brown v. Hoffelmeyer, 74 Mo.App. 385; Wilson v. Riddler, 92 Mo.App. 335.
This action was brought by the indorsees of three negotiable promissory notes which they claimed to hold by purchase from the payee for value before maturity.
The answer under oath in effect admitted the execution of the notes but alleged that after delivery each of them was altered by the erasure of the words, "and attorney's fees," from the face of the instrument. Also, that all of said notes were procured by fraud practiced by the payee upon the defendant in this, that the payee, assuming to be the owner of the sole right to sell a certain wire fence machine in the counties of Buchanan and Andrew, this State, agreed in writing with defendant to appoint him its general agent with the exclusive privilege to exercise and use said right in the territory mentioned; which agreement, together with the sale of certain machines by the payee to defendant, furnished the sole consideration for the execution of the notes. It was further alleged that when these contracts were made and the notes delivered, the payee did not own the said right but had, some time before, sold it to another person, of the existence of which facts plaintiffs were charged with having actual knowledge.
The reply was a general denial.
A trial resulted in a verdict for plaintiffs upon all of the notes. The trial court, however, sustained the motion for new trial, afterwards filed by defendant, upon the ground of error in plaintiffs' instructions; and the appeal is prosecuted by plaintiffs from this order.
At the trial there was no controversy over the fact of the erasure of the words, "and attorney's fees" from the face of the notes; but it was asserted by the plaintiffs' witnesses, and denied by the defendant's, that the words were erased from the printed forms before the notes were executed and delivered. Evidence was also introduced by defendant tending to prove the charge of fraud in the inception of the notes. The agency contracts conveying to defendant the exclusive right to sell the machines in Andrew and Buchanan counties were admitted, as was also evidence to the effect that the same right was then outstanding in another person under a similar contract previously made by the payee; and that both transactions had been conducted by payee through the same person as its authorized agent. The evidence was sufficient to justify the submission to the jury of both issues raised by the pleadings.
The first instruction given on plaintiffs' behalf covered the whole case, presented both issues and cast the burden of proof upon the defendant, "to show the existence of such fraud and misrepresentation and that the plaintiffs had such actual notice thereof." The rule is with respect to negotiable paper tainted with fraud in its inception that upon the introduction of evidence by the maker tending to prove the fraud the burden devolves upon the holder to show clean hands. He must establish the fact that he is a bona fide purchaser of the paper for value, before maturity, free from knowledge of the payee's dishonest conduct in its procurement. [Hahn v. Bradley, 92 Mo.App. 399; Hamilton v. Marks, 63 Mo. 167; Daniel on Negotiable Instruments, sec. 815.] To throw the burden upon the maker to show bad faith in the holder, as is done in the instruction under discussion, would greatly aid in the successful perpetration of such frauds in assisting the payees by transferring the paper to hide behind an alleged innocent holder.
Plaintiffs' instructions four, five and six are also subject to criticism. They are alike, each being based...
To continue reading
Request your trial