Kelley v. Briggs
| Decision Date | 26 June 1920 |
| Docket Number | No. 13673.,13673. |
| Citation | 223 S.W. 959 |
| Parties | KELLEY v. BRIGGS et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.
"Not to be officially published."
Action by James M. Kelley against J. D. Briggs and others. Judgment for defendants" and plaintiff appeals. Reversed and remanded.
James A. Kemper, of Independence, for appellant.
L. T. Dryden, of Independence, for respondents.
The Independence Planing Mill & Supply Company was indebted to the Jackson County Bank at Independence, Mo., on two notes for 84,420 each, for money borrowed by it. Said notes were executed by the mill company and the three defendants herein, Briggs, Mather, and Curtis, as sureties, who were stockholders in said company. In September, 1910, the bank having demanded payment of said notes, a meeting was held at which certain stockholders of the mill company were present, among whom were plaintiff and one Yingling and three defendants. It was proposed that each of the five parties named should give their individual notes to the bank for one-fifth of the indebtedness evidenced by said two notes. Plaintiff was not a signer of either of the two notes nor in any way obligated thereon, and, as an inducement for him to sign a note for one-fifth of the indebtedness due the bank, it was suggested that plaintiff take a second mortgage on the mill property. The directors of the mill company consented that this be done. There was a first mortgage upon the mill property, and plaintiff refused to take the second mortgage as suggested. Finally, at plaintiff's request, defendants agreed that, if plaintiff would sign a note to the bank for one-fifth of the indebtedness due it, said two notes should be assigned to plaintiff, Yingling, and defendants as collateral security to secure said persons on said five notes to he signed by them, and the secretary of the mill company was directed to indorse such agreement upon the back of the two notes. It was further agreed that, should the mill company pay anything on the said two notes, such payment or payments should be prorated among the said five persons and applied on all five notes. Said five notes were executed as was agreed, and said two notes were paid by the five notes. The two notes were left in the hands of the bank for safe-keeping as collateral for the notes of said five parties, and the secretary indorsed on each of the said two notes the following:
"These notes collateral for individual notes signed by A. L. Yingling, J. T. Curtis, J. Mather, J. D. Briggs, J. M. Kelley, dated Sept. 8th, 1910."
The mill company never paid anything on said two notes.
Plaintiff was required to pay his said note and brought this suit to enforce the collateral. At the close of all the evidence, the court sustained defendant's demurrer to the evidence, and plaintiff has appealed.
There Is no evidence that said two notes were assigned by the bank, but, as already stated, the indebtedness evidenced by said two notes was paid the bank by the execution to it of said five notes. It also was in evidence that said five notes had been paid by the respective makers thereof.
While it was the understanding that the bank, after it was paid said two notes, was holding...
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