Little v. Nabb

• Decision Date: 31 March 1846
• Citation: 10 Mo. 3
• Court: Missouri Supreme Court
• Parties: LITTLE & NOECKER v. NABB.

10 Mo. 3

LITTLE & NOECKER

v.NABB.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

PRIMM & TAYLOR, for Appellants. 1. The instruction of the court takes the whole case from the jury and leaves them nothing to do, but sign the same for their verdict, which they in fact did. 6 Mo. R. 64. 2. The instruction of the court was erroneous, because the guarantee need not express the consideration, but the same may be shown by parol, which was done in this case. 2 Mo. R. 126; 8 Mo. R. 303. 3. The plaintiffs were entitled to a verdict, for they showed more than the strict letter of the law required, as the makers of the note were proven to have been insolvent, not only at the time same was made, but so at the time the guarantee was executed, as well as the time this suit was brought. 4. It was not necessary that the note should have been protested, and notice given to the guarantor. 20 Johns. R. 364-5, and authorities there cited. 5. If the defendant relied on the statute of frauds, then the plaintiffs were entitled to a verdict, and the instruction was erroneous, because it has been repeatedly decided in our courts that the memoranda need not express the consideration, but the same may be shown by parol. See authorities cited in point second. 6. The guarantor being the payee of the note, executing and delivering the same to the appellants, it imports a consideration in itself. 13 Johns. R. 175, and cases cited in note.

CROCKETT & BRIGGS, for Appellee.

NAPTON, J.

This was a suit originally brought before a justice of the peace, upon the following note and guaranty:

“St. Louis, 31st May, 1842. For value received, we and each of us, promise to pay to Geo. W. Nabb, or order. twenty dollars, negotiable and payable without defalcation.

NEWT. WEIMAR,

THOMAS DICK.”

The following indorsement was on the note: “To Messrs. Little & Noecker: I hereby guarantee and secure the payment of the within note this 13th Aug., 1842.

GEORGE W. NABB.”

On the trial before the Court of Common Pleas, the plaintiff gave in evidence the note above set forth, and the indorsement thereon; proved the hand-writing of defendant, and the consideration for which the note and guarantee were given, and further proved that said Weimar & Dick were both insolvent at the time said guarantee was executed. The defendant objected to the plaintiffs' recovery because the guaranty did not express on its face the consideration for which it was given, and thereupon the court...