Long v. Todd

• Decision Date: 16 December 1920
• Parties: ELLEN LONG, Defendant in Error, v. JOE LEE TODD et al., Plaintiffs in Error
• Court: Missouri Court of Appeals

226 S.W. 262

207 Mo.App. 496

ELLEN LONG, Defendant in Error, v. JOE LEE TODD et al., Plaintiffs in Error

Court of Appeals of Missouri, Springfield

December 16, 1920

Error to the Circuit Court of Jasper County.--Hon. Joseph D Perkins, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Dewey & Foulke for plaintiffs in error.

(1) The court erred in finding the issues for the plaintiff Long as to defendant Leroy S. Dewey, because the evidence uncontradicted, shows that said defendant was an accommodation indorser for the payee Long, the plaintiff below, at the solicitation of said plaintiff; and that said endorsement was given without consideration, by reason of which plaintiff cannot recover against the defendant L S. Dewey. Overland Auto Company v. Winters, 210 S.W. 1; R. S. 1909, secs. 9999, 10000, 10034, 1874. (2) The court erred in not sustaining defendant's motion for a new trial for the reason that under the law and the uncontradicted evidence of defendant L. S. Dewey, the verdict should have been for said defendant Dewey, because the endorsement was secured by plaintiff Long, the payee of said note, for her express accommodation, and was without consideration. R. S. 1909, secs. 10000, 10034, 1974. (3) The court erred in finding for the plaintiff as aganst the defendant Leroy S. Dewey, because under the pleadings and the evidence in the case it appears that legal demand for payment was never made of said defendant endorser. R. S. 1909, sec. 10041; Overland Auto Company, 210 S.W. 1.

BRADLEY, J. Sturgis, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

This is a suit on a promissory note, Defendant, Dewey contested the case. The cause was tried to the court without a jury, and judgment went for plaintiff and against both defendants, and defendant Dewey brings the cause here by writ of error. Plaintiff and one McBee were partners in the Connor Taxi Company of Joplin. Plaintiff and McBee had some differences, and defendant Dewey, an attorney, represented plaintiff in whatever troubles she had with McBee concerning the Taxi Company. McBee sold his interest to defendant Todd, and thereafter as soon as Mrs. Long's interest was ascertained, defendant, Dewey, induced Todd to purchase Mrs. Long's interest. The consideration for Mrs. Long's interest was $ 650. Todd paid $ 100 cash, and gave the note sued on for $ 550 due in thirty days, and defendant Dewey endorsed this note by writing his name on the back thereof. The defense of defendant Dewey is want of consideration to bind him on his endorsement. Defendant Todd had paid a part of the note, and the judgment is for the balance.

Plaintiff introduced the note and rested. Defendant Dewey was the only witness called. He testified that representing Mrs. Long he "went to Todd and got him to purchase her part of the business. He was to pay $ 650; that he was to pay her part cash and a note for the balance. That plaintiff wanted to arrange to get the money on the note at once; that she and defendant Dewey talked the matter over and he agreed to endorse the note for her so she could get the cash at the Miners Bank. So they got together and fixed up the trade, and according to agreement he had Todd bring around the note for his signature, which was given. That thereafter she did not use it at the bank, but made collections along on it from Todd till it was reduced to $ 325, and then Todd's business went to pieces and nothing more was paid."

Defendant Dewey was an accommodation endorser for the payee in the note, and not for the maker Todd, and this endorsement was made at the request of the payee, and not at the solicitation and request of Todd. Section 1974, Revised Statutes 1909 among other things provides that whenever a written contract for the payment of money is the foundation of an action, the proper party may prove the want or failure of consideration. By section 9999, Revised Statutes 1909,...