Kirkpatrick v. Smith

• Citation: 55 Mo. 389
• Parties: ARTHUR KIRKPATRICK, Respondent, v. FREDERICK W. SMITH AND THOMAS B. WEAKLEY, Appellants.
• Decision Date: 28 February 1874
• Court: United States State Supreme Court of Missouri

55 Mo. 389

ARTHUR KIRKPATRICK, Respondent,

v.FREDERICK W. SMITH AND THOMAS B. WEAKLEY, Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Common Pleas Court.

Loan & Van Waters, for Appellants.

Thomas & Ramey, for Respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff as indorsee, against the defendant Smith as maker, and the defendant Weakley as indorser, of a negotiable promissory note. The petition alleges that the plaintiff was indorsee of a note for value before maturity. The defendant Weakley set up no defense; the defendant Smith set up by answer the following defense: He denied that the plaintiff was an innocent holder before maturity for value, and charges that there was a fraudulent combination between Weakley and the plaintiff to deprive defendant of the benefit of certain payments he had made, which together with his admitted payment of interest indorsed on the note, paid off the debt. He charges that those alleged payments were made of moneys which had been collected by Weakley on certain notes, a list of which is set out in the answer, which had been delivered by him to Weakley for that purpose when he executed the note sued on; and that Weakley held the note sued on, as owner till long after it matured, and till a short time before this suit was brought, and then transferred it to plaintiff for the purpose of cheating him, Smith, out of two payments, under the false pretense that the plaintiff had taken the note before maturity for value. This was the only defense, based on payments, contained in the answer. The plaintiff replied denying all the material allegations of the answer. The case was submitted for trial to a jury, and the bill of exceptions alleges that each party gave evidence conducing to prove the facts relied on by them in their respective pleadings. The bill of exceptions also shows that the defendant offered to prove that on several occasions, and at several times, money had been paid to the plaintiff by way of bonus for an extension of the time on the note sued on; that by agreement between the parties, this money so paid was not to be a payment on the note, but simply as a bonus for further extension of the time of payment. This evidence was objected to by the plaintiff upon the ground that there was no foundation in the answer or pleadings for its admission. The court sustained the objection and the defendant excepted.

At the instance of the plaintiff the court gave three instructions to the jury. The first two were not objected to, and therefore need not be set forth here. The third which was...