Klein v. Keyes
| Decision Date | 31 October 1852 |
| Citation | 17 Mo. 326 |
| Court | Missouri Supreme Court |
| Parties | KLEIN, Respondent, v. KEYES & EICHELBERGER, Appellants. |
1. Under the twenty-third section of article 1, of the act concerning ““costs,” (R. C. 1845,) evidence of a tender before suit brought is admissible, although the defendant does not bring the money into court, nor show that he has always been ready to pay it.
2. Under section twenty-six of article five of the act concerning justices' courts (R. C. 1845), the only consequence of a failure to deny the execution of a note sued upon under oath, is to relieve the plaintiff from the necessity of proving its execution. Under a plea of non est factum without affidavit, every other defense is admissible.
3. Between the original parties to a negotiable note, the consideration may be inquired into.
4. In an action upon a note given by one partner in the name of the firm, evidence is admissible that the note was given in part for a debt not growing out of the partnership business, and that this fact was known to the plaintiff.
Appeal from St. Louis Law Commissioner's Court.
H. Dusenbury, for appellants.
John M. Krum, for respondent.
This was an action instituted in a justice's court, on a note, of which the following is a copy:
“St. Louis, May 7th, 1850.
Six months after date, we promise to pay to the order of Michael Klein, one hundred and ten dollars, for value received, negotiable and payable at the Bank of the State of Missouri, without defalcation or discount.
KEYES & EICHELBERGER.”
After judgment, the case was taken by appeal from the justice's court to the law commissioner, where, on a trial de novo, a judgment was rendered for the amount of the note, from which an appeal was taken to this court.
Eichelberger's defence was, that the note was not a partnership transaction; that only seventy-one dollars, part of the consideration of the note, was due on account of the firm; that the balance of the consideration was for the private debt of Keyes, one of the makers, and that such fact was known to Klein when he received the note. Eichelberger also offered evidence to show that, before the beginning of the suit, he had tendered to the plaintiff the full amount due by him as a member of the firm, with lawful interest, and that he had tendered the same amount in court after the trial commenced; that the note was executed by Keyes without the knowledge or consent of Eichelberger. Evidence, in support of this defence, was excluded and judgment was rendered for the amount of the note.
1. The twenty-third section of the act concerning costs in civil cases, has changed the common law in relation to a tender. That section provides that in all actions, where, before suit brought, tender shall be made and full payment offered, and the party to...
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Brownlee-Moore Banking Co. v. Henderson
... ... the execution of the note and the further defense of insanity ... and therefore verification was not necessary. Klein v ... Keyes & Eichelberger, 17 Mo. 326; Hill-Dodge Banking ... Co. v. Loomis, 119 S.W. 967, 140 Mo.App. 62; ... Hammerslough v. Cheatham, 84 Mo ... ...
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Haysler v. Dawson
...his answer, he having explicitly denied the partnership therein, he should have been permitted to support his answer with proof. Klein v. Keyes, 17 Mo. 326. The court below erred in receiving testimony against the objections of defendant, Dawson, tending to prove accounts set forth in the s......
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Hacker v. Brown
...but the defense shows either a total or partial failure of consideration. See Wade v. Scott, 7 Mo. 509; Ray v. Baker, 9 Mo. 850; Kleine v. Keyes, 17 Mo. 326; Gamache v. Grimm. 23 Mo. 38; Story on Bills, (4 Ed. p. 192 § 182. John L. Mirick for respondent. This being an action at law, this co......
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Lewis v. West
...I. The defence is a failure of consideration. In an action between the original parties the consideration may be inquired into. Klein v. Keyes, 17 Mo. 326; Sect. 3725, Rev. Williams v. Mellon, 56 Mo. 262; Boogher v. Knapp, 76 Mo. 455; Murphy v. Gay, 37 Mo. 535. II. There was no error in giv......