Laumeier v. Hallock
| Decision Date | 01 December 1903 |
| Parties | LAUMEIER, Appellant, v. HALLOCK, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.
AFFIRMED.
Judgment affirmed.
F. M Estes for appellant.
(1) The court erred in its instructions. Mensi v. Osborn, 5 Mo. 544; Wilson v. Houston, 13 Mo. 140; Dorsey v. Watson, 14 Mo. 59; Clayton v. Phipp, 14 Mo 554. (2) The court erred in refusing instruction offered by plaintiff. Klosterman v. Kage, 39 Mo.App. 60; Banking Co. v. Blell, 56 Mo.App. 410. (3) The acts and promises of the defendant justified plaintiff in believing that demand and notice were unnecessary. Tailer v Furnishing Goods Co., 24 Mo.App. 420.
F. J. McMaster for respondent.
(1) A valid agreement by the mortgagee with the grantee of the mortgagor to extend the time of payment made without consent of the mortgagor discharges the latter, and this doctrine is supported by the great weight of authority. Wyman v. Jones, 58 Mo.App. 313; Nelson v. Brown, 140 Mo. 580; Donovan R. E. Co. v. Clark, 84 Mo.App. 163. (2) Where the holder of a note releases the maker such rule operates as a discharge of all subsequent parties thereto, including the indorser thereon. And whether or not the indorser assents to the discharge is of no consequence. Brown v. Croy, 74 Mo.App. 465; Eggeman v. Henschen, 56 Mo. 123; Bank v. Schumucker, 7 Mo.App. 171. (3) If proper steps are not taken to fix the liability of an indorser, and thus convert his conditional liability into an absolute agreement, he is discharged, unless, with a full knowledge of all the facts of his release, he promises to pay the debt, or does acts from which such promises can be clearly and unmistakably inferred. Faulkner v. Faulkner, 73 Mo. 327. (4) Acting as agent of the grantee of the mortgagor, who has become primarily liable for the payment of the note, by an indorser, and thereby aid in collection of the interest for the holder, does not waive protest or revive liability. Wilson v. Houston, 13 Mo. 150; Isham v. McClure, 58 Iowa 515. (5) Evidence of waiver of protest must be clear and distinct, and will be strictly construed. Faulkner v. Faulkner, 75 Mo. 327; Freeman v. O'Brien, 38 Iowa 406.
Action against the respondent as indorser of a promissory note. Said note was dated February 3, 1901, was for $ 2,000, due three years after date, payable to the order of Leander Hallock, the respondent, and bore interest at the rate of ten per cent per annum. It was executed by John A. Laird and Belle W. Laird, under these circumstances: John A. Laird purchased a parcel of ground in St. Louis from a man by the name of McClain. Laird wanted to build a house on the lot and applied to Stewart & Company, a firm of real estate brokers, to borrow the money. Hallock was a member of that firm and procured the loan through Henry Hiemenz. The note in suit was given for the loan, being made payable, as stated, to Hallock, and secured by a deed of trust on the lot. Christine Laumeier advanced the money which Hiemenz lent, and the note and deed of trust were immediately turned over to her. A few months after these transactions, to-wit, June, 1901, Laird sold the premises to Elias Yerkes, conveying the title by a deed which recited that Yerkes assumed and agreed to pay as part of the purchase price of the lot, the debt of $ 2,000 which incumbered it. At the time of his purchase Yerkes executed a second deed of trust for $ 1,300, payable in monthly installments of thirty dollars each. The arrangement was that he was to pay eight of these monthly installments each year in reduction of the balance of the purchase price, over and above the assumed incumbrances and to pay four of them, or $ 120 each year, in liquidation of the interest on said incumbrance.
When the original note first matured in 1894, it was renewed for three years; when it fell due in 1897, it was again renewed for two years, and four interest notes were executed by Yerkes payable to the order of Philip Betz, for the semi-annual interest during the two-year extension. At the end of that time the note was again extended for three years, Yerkes executing six interest notes payable to the order of Henry H. Laumeier, son of the appellant. All said interest notes were indorsed and delivered by Betz and Henry Laumeier to the appellant.
The evidence shows that John A. and Belle Laird knew nothing of these extensions of the original note, and that no demand for payment was made of them at maturity, or notice of the dishonor given to Hallock. At the expiration of the last extension Yerkes still failed to pay; so the deed of trust securing the note was foreclosed and the property sold for $ 1,000, which sum was credited on the note and the present action begun against Hallock for the balance. This attempt to hold Hallock as indorser, in the face of the fact that there was no demand for payment of the makers or notice of dishonor given, is based on the assumption that Hallock himself procured the extensions for his own benefit; wherefore, it is contended he waived demand and notice.
An indorser of negotiable paper may waive demand and notice, not only by an express promise to pay after he knows the paper has been dishonored, but by acts from which it may be implied that he promised to pay, or led the payee to believe he did not require demand and notice. Wilson v. Huston, 13 Mo. 146; Dorsey v. Watson, 14 Mo. 59; Clayton v. Phipps, 14 Mo. 399; Banking Co. v. Blell, 57 Mo.App. 410; 2 Randolph, Commercial Paper, secs. 1383 to 1391. When the claim of implied waiver is put forward, the question is, what was the intention of the indorser and payee in doing the acts asserted to constitute the waiver? Were the acts such that the payee was justified in concluding the indorser relinquished his right to demand notice? In the present case the appellant's counsel requested the following declaration of law, which was refused:
"If the court finds from the evidence that the defendant Hallock, when the note sued on...
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