Kleinmann v. Boernstein

• Decision Date: 31 March 1862
• Citation: 32 Mo. 311
• Parties: GOTTFRIED KLEINMANN, Respondent, v. HENRY BOERNSTEIN et al., Appellants.
• Court: Missouri Supreme Court

32 Mo. 311

GOTTFRIED KLEINMANN, Respondent,

v.HENRY BOERNSTEIN et al., Appellants.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Circuit Court.

A. M. & S. H. Gardner, for appellants.

I. Helgenberg was a proper witness. As he had withdrawn

his answer, and default had been entered, his testimony could not benefit himself.

The defence of Boernstein was peculiar to himself, of which Helgenberg could take no advantage. (Page et al. v. Butler et al., 15 Mo. 547; 1 Green. Ev., § 355; Steel v. Boyd, 6 Leigh, 547; 4 Sanf. 616; 3 Smith, 7 N. Y., 507; Acts 1856-7, p. 181.)

II. No proper notice of demand and refusal of payment was delivered to or served upon the endorser. (Sto. on Bills, 300.)

H. N. Hart, for respondent.

I. Helgenberg was not a competent witness for his codefendant. a. Because the matters offered to be proved occurred anterior to the transfer of the note by Helgenberg to the plaintiff. b. Because the matter of defence went to the whole suit. (R. C. 1855, p. 1577, § 3 & 6; Acts 1857, p. 181; Benoist v. Donnelly, 26 Mo. 589; Garnier v. Le Beau, 30 Mo. 229; Schaefer v. Kahlman, 30 Mo. 233.)

II. The notice of protest was left at the usual place of business of defendant. (Sto. Prom. Notes, § 312; Sto. on Bills, 297.)

III. The plaintiff was not bound to prove that he gave value for the note; the law presumes that from his possession of it. (Clark v. Schneider, 17 Mo. 295.)

BATES, Judge, delivered the opinion of the court.

This is a suit brought against Helgenberg, the maker, and Boernstein and Reichard, endorsers, of a negotiable promissory note. The suit was afterward dismissed as to Reichard. Helgenberg answered, and afterward withdrew his answer, and the petition was taken against him as confessed. Boernstein answered that his endorsement was obtained by Reichard by false and fraudulent representations, of which the plaintiff had knowledge, etc.; and also denies that he had due notice of the protest of the note.

At the trial of the issues between the plaintiff and Boernstein, the notary who made the protest testified that he “demanded payment of the note in question, of the maker, on the day it became due. Payment was refused, and on the same day he gave notice of its non-payment to Boernstein by delivering the notice to him personally, or by leaving it on a desk in his office in his absence. I know the building in which Boernstein keeps his office. The office in which the notice was left is in the second story of the building. I can't state whether I left it on the desk of Boernstein, or gave it to him personally.”

Another witness testified that Boernstein's office was in the third story of the building.

Defendant Boernstein then called as a witness the defendant Helgenberg, and offered to prove by him that the note in question was obtained by Reichard by fraud, and without consideration; that plaintiff never paid any consideration for it, and that the plaintiff was a party to Reichard's fraud; and that plaintiff knew, at the time he obtained the note, that Boernstein's endorsement on the same was obtained by fraud and misrepresentation on the part of Reichard; and that he (plaintiff) took said note without consideration, and in collusion with said Reichard, for the purpose of defrauding said Boernstein.

The plaintiff objected to Helgenberg's being sworn as a witness, on the ground that he was a co-defendant, and his evidence would establish no separate defence for Boernstein. The court sustained the objection and excluded the testimony, to which the defendant excepted.

The court gave the following instruction for the plaintiff:

“In assessing the damages against John Helgenberg, and if the jury find for plaintiff against Henry Boernstein, they will assess...