Keyser v. Hinkle
| Decision Date | 02 December 1907 |
| Parties | J. W. KEYSER, Respondent, v. JOHN HINKLE and WILLIAM ADAIR, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. J. B. Johnson, Judge.
AFFIRMED.
Judgment affirmed.
A. B Lovan for appellant.
(1) Mr Adair signed the note as a surety only. As such surety he is only bound technically and has a right to rely upon being technically released. Higgins v. Harvester Co., 181 Mo. 311. (2) It is a general rule that a surety has a right to choose the terms upon which he will become liable, and to stand strictly upon those terms, so that any failure to comply with the conditions upon which he signs, discharges him. 1 Enc. of Law (2 Ed.), 379, 380, 383; 27 Enc. of Law (2 Ed.), 441, 443, 444, 533; 1 Brandt on Suretyship and Guaranty (2 Ed.), sec. 114. (3) Mr. Adair did choose the terms upon which he signed the note, viz: that said note was to be used as security in obtaining money and that the money obtained would be used for the benefit of the bank of Salmon & Salmon in its banking business and for no other purpose. The money was not used for such purpose but was fraudulently diverted to the use of G. M. Casey. This diversion was without the knowledge or consent of Mr. Adair. 1 Clark & Skyles on Law of Agency, sec. 507; Mundorff v. Wickersham, 63 Penn St. 89; Alton & Co. v. Olson, 34 Minn. 452; Union Trust Co. v. Phillips, 7 S.D. 225; Haskit v. Elliott, 58 Ind. 493. (4) It therefore was material to establish the fact that Thomas M. Casey was acting as the agent of respondent when he procured the note sued on. The contention of appellant is that it was the duty of the court to submit the question of agency to the jury. 1 Clark & Skyles on Agency, 164; Mosby v. Commission Co., 91 Mo.App. 504; 1 Am. and Eng. Ency. Law (2 Ed.), 962; Mosby v. Commission Co., 91 Mo.App. 506; Barrett v. Railroad, 9 Mo.App. 226; Mechem on Agency, sec. 106. (5) It seemed to be the opinion of the trial court that because Thos. M. Casey was the agent and manager of the bank of Salmon & Salmon he could not be the agent of respondent. The remarks of the court indicate that it was for this reason that the peremptory instruction was given. The appellant pleads in his answer that Casey was the manager of the bank of Salmon & Salmon. That fact does not prevent him at the same time acting as the agent of respondent in loaning respondent's money and procuring a note for such loan. 1 Clark & Skyles on Agency, page 931, note. (6) It was the province of the jury to say whether, under all the facts and circumstances in evidence, the respondent accepted the four thousand dollar note in satisfaction of the three thousand dollar and one thousand dollar notes. If he did so accept it, then he cannot recover on the three thousand dollar note. 2 Daniel on Negotiable Instruments (4 Ed.), pages 294, 298; Bank v. Bornman (Ill.), 16 N.E. 210; Kendall v. Insurance Society, 51 N.W. 464; Neff v. Clute, 12 Barbour (N. Y.), 470; Stanley v. McElrath, 10 L. R. A. 548; Jackson v. Bowles, 67 Mo. 615; Siemans & Halske Electric Co. v. Ten Broek, 97 Mo.App. 175; Appleton v. Kennon, 19 Mo. 637; Ashbrook v. Letcher, 41 Mo.App. 372; Drake v. Critz, 83 Mo.App. 650. (7) If the name of John Hinkle was forged to the note sued on, then the appellant, William Adair is released from any liability. Bank of Maitland v. Myers, 50 Mo.App. 160; Bank v. Nickell, 34 Mo.App. 298; R. S. 1899, sec. 4679.
W. E. Owens, with R. T. Railey, for respondent.
(1) Where the evidence is of that character that the trial judge would have a plain duty to perform in setting aside the verdict as unsupported by the evidence, it is his duty and his prerogative to interfere before submission to the jury and direct a verdict for the defendant. Jackson v. Hardin, 83 Mo. 186; Powell v. Railroad, 76 Mo. 80; Reichenbach v. Ellerbe, 115 Mo. 588; Hite v. Railroad, 130 Mo. 141; State v. O'Neill, 151 Mo. 89, 90. (2) The note sued on, was in possession of plaintiff; was payable to him; was drawn in the ordinary form of negotiable instruments, without any erasures or irregularities appearing therein; was signed by all the parties who were to sign it, to-wit: G. M. Casey, Thos. M. Casey, William Adair, J. R. Barker and John Hinkle. The amended answer of Adair admits that respondent loaned the three thousand dollars and took the note sued on as evidence of said indebtedness, but claims that the money was diverted from the bank to G. M. Casey. Upon elementary principle, as well as under the authorities hereafter cited, the court upon foregoing facts, felt compelled to direct a verdict for respondent, as against Adair. Hamilton v. Marks, 63 Mo. 175; Borgess Inv. Co. v. Vette, 142 Mo. 560; Bank v. Salmon, 117 Mo.App. 510. (3) On this state of facts, appellant made Thomas Casey his agent in filling out and delivering the note. He was conclusively bound by what Casey did, and the court, by reason thereof, properly directed a verdict in favor of respondent and against Adair. L. & T. Co. v. Brown, 59 Mo.App. 469; Bank v. Bosserman, 52 Mo.App. 273; Schooler v. Tilden, 71 Mo. 580; 2 Daniel, Neg. Inst. (1 Ed.), sec. 1469; 1 Dan. Neg. Ins. (5 Ed.), sec. 142, L. 164, 5; 2 Brandt, Guar. and Sur., sec. 410; Gibbs v. Johnson, 63 Mich. 671; Brown v. Prob. Judge, 42 Mich. 504; McCormick v. Bay City, 23 Mich. 457; 7 Am. Dig. (Cent. Ed.), sec. 86, p. 134, and numerous cases cited; Angle v. Insurance Co., 92 U.S. 330; Nash v. Fugate (W. Va.), 32 Gratt. 595, 34 Am. Rep. 780; Harvester Co. v. McLean, 57 Wis. 258; Davis v. Lee, 26 Miss. 505, 59 Am. Dec. 267. (3) It is one of the maxims of the law, that, as between two innocent persons, he who is mostly at fault and brought about the conditions complained of, should bear the loss. Marks v. Hamilton, 63 Mo. 167; Henderson v. Bondurant, 39 Mo. 372; Bank v. Garten, 34 Mo. 119; Tumilty v. Bank, 13 Mo. 276; Curry v. Bank, 100 Mo.App. 538; Pitman v. Mining Co., 78 Mo.App. 441; Bank v. Wade, 73 Mo.App. 561; Walters v. Tielkemeyer, 72 Mo.App. 376; Bank v. O'Connel, 23 Mo.App. 166; McNeil v. Bank, 46 N.Y. 325; Seibel v. Bank, 55 N.Y. 288; Moore v. Bank, 55 N.Y. 49; Weyh v. Boylan, 85 N.Y. 400; Fairbanks v. Sargent, 104 N.Y. 117; Dair v. U.S. 16 Wall. 1; Angle v. Insurance Co., 92 U.S. 330, 23 L.Ed. 556; 2 Daniel, Neg. Inst. (1 Ed.), secs. 776, 1469; 2 Beach, Mod. Eq. Jur., sec. 1103, and cases; 2 Brandt Guar. and Sur., sec. 410; Gibbs v. Johnson, 63 Mich. 671; Brown v. Prob. Judge, 42 Mich. 504; McCormick v. Bay City, 23 Mich. 457; Chicago v. Gage, 95 Ill. 593; Comstock v. Gage, 91 Ill. 328; Smith v. Peoria County, 59 Ill. 112; Nash v. Fugate (W. Va.), 32 Gratt, 595, 34 Am. Rep. 780; Cutler v. Roberts, 7 Neb. 4, 29 Am. Rep. 371, and note, 377; 7 Am. Dig. (Cent. Ed.), sec. 86, p. 134, and numerous cases cited; Johnson v. Weed & G. Mfg. Co. (Wis.), 79 N.W. 237; 103 Wis. 291, 295; Harvester Co. v. McLean, 57 Wis. 258, 15 N.W. 177, 1 N.W. 285; Armstrong v. Scott, 36 F. 63; Bank v. Neal, 63 U.S. 96 (How.) ; Gillaspie v. Kelly, 41 Ind. 158, 13 Am. 318; Iowa College Trustees, 12 Iowa 462; Lowden v. Bank, 38 Kan. 533, 16 P. 748; Battalora v. Erath, 25 La. Ann. 318; Ives v. Bank, 84 Mass. (2 Allen) 236; Davis v. Lee, 26 Miss. 505, 59 Am. Dec. 267; Weyerhauser v. Dun, 100 N.Y. 150; McArthur v. McLeod, 51 N. C. (6 Jones) 475; Bank v. Smith, 5 Ohio (5 Ham) 222; Jones v. Prumm, 6 Tex. 170; Geddes v. Blackmore, 132 Ind. 551, 32 N.E. 567; Spitler v. James, 32 Ind. 202, 2 Am. 334; Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15; Jones v. Insurance Co., 58 Ky. (1 Metc.) 58; Frank v. Lillienfeld (W. Va.), 33 Gratt. 377. (4) Where a note has been given to take up a former account, or where a note has been given in lieu of a former note and the parties interested, with knowledge of all the facts, in good faith, for a valuable consideration, agree that the new note, which is duly signed by the maker, may be taken with the understanding that the original account or the original note shall be cancelled, then there is a novation of the contract. Otherwise the new note, when taken, if delivered and cancelled at the trial, leaves the original note or account in full force and effect, and the owner of same may sue thereon as though no new note had been taken. Appleton v. Kennon, 19 Mo. 637; McMurray v. Taylor, 30 Mo. 266; Howard v. Jones, 33 Mo. 583; Doebling v. Loos, 45 Mo. 151; Block Admr. v. Dorman, 51 Mo. 32; Leabo v. Goode, 67 Mo. 126; Brooks v. Mastin, 69 Mo. 63; Biggs v. Goodrich, 74 Mo. 112; Holland v. Rongey, 168 Mo. 19; State ex rel. Crider v. Wagers, 47 Mo.App. 438; Berkshire v. Hoover, 92 Mo.App. 352.
--This action, begun in Henry county and taken by change of venue first to Cass and then to Vernon county, is on a promissory note of which the following is a copy:
The verified answer of William Adair begins with a general denial and then tenders special defenses, the nature of which appears in the following statement of its contents: "Defendant, further answering, denies that he executed or delivered the note sued on as described in plaintiff's petition and alleges that he signed the note when there was no payee's name written in it; that he did not authorize the writing in the note of the name of the payee except on certain conditions as herein set forth; that he so signed said note upon...
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