Long v. Dismer
| Decision Date | 30 April 1880 |
| Citation | 71 Mo. 452 |
| Parties | LONG v. DISMER AND MCENTEE, Appellants. |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court.--HON. V. B. HILL, Judge.
REVERSED.
The note sued on was for $132.87.
L. F. Parker for appellants.
C. C. Bland for respondent.
McEntee was the payee and indorser of a negotiable promissory note. No demand of payment had been made of the makers. Several days after the note fell due, Richardson, the then holder, states that he called on the indorser and told him that the Dismer note had not been paid, and asked him how about it, when McEntee told him “to go and collect the note of the makers, that the note was good;” that, thereupon, Richardson informed him that payment had not been demanded of the makers, and he said “that made no difference, that did not release him.” Richardson further states that he told McEntee that Baker had said that he, McEntee, was released, and asked him if he would take advantage of it, if it hould turn out that he was released by failure to make demand of Dismer, when McEntee said: “I refuse to answer that question.” McEntee's testimony is in most respects like that of Richardson, but he says that at the time of the interview referred to, he did not know that he was released, and did not promise to pay the note. Long, the plaintiff, testified that McEntee offered to give him $100 for the note, payable in three months. This McEntee denied, but stated he had asked Long, by way of compromise, if he would take $75 for the note. This was all the evidence. The instructions for the plaintiff are not preserved, but defendant, McEntee, was refused an instruction in the nature of a demurrer to the evidence. This instruction was improperly refused.
The authorities agree that if the proper steps are not taken to fix the indorser, and thus convert his conditional liability into an absolute engagement, he is discharged, unless with full knowledge of all the facts of his release, he promises to pay the debt, or does acts from which such promise can be clearly and unmistakably inferred. 1 Parsons Notes and Bills 595, et seq.; Story Prom. Notes §§ 274 et seq., and 280. In the present instance it is quite too clear for argument that McEntee made no use of any expression that can be to tured into an acknowledgment of, or promise to pay, the debt. He evidently did not know, until informed by Richardson that he was released, but as soon as he was informed of that fact, he positively refused to answer...
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Faulkner v. Faulkner
...no evidence of any waiver of protest by Malcolm, and such evidence, if offered, would have been inadmissible under the pleadings. Long v. Dismer, 71 Mo. 452. Such evidence must be clear and distinct, and will be strictly construed. 1 Parsons Notes and Bills, 596; Jaccard v. Anderson, 37 Mo.......
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