Lowrey v. Danforth
| Decision Date | 10 June 1902 |
| Citation | 69 S.W. 39,95 Mo.App. 441 |
| Parties | ANNIE LOWREY, Respondent, v. S. T. DANFORTH, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. David H. Eby. Judge.
REVERSED AND REMANDED.
J. W Jump and J. D. Hostetter for defendant.
(1) Plaintiff is not a purchaser for value before maturity. The note does not contain the words "for value received" and is therefore a non-negotiable instrument. Sec. 457, R. S. 1899; Sec. 4488, R. S. 1899; Austin v Blue, 6 Mo. 265; Bailey v. Senock, 61 Mo. 218; Taylor v. Newman, 77 Mo. 263; Cutter v Cook, 77 Mo. 388. Even if plaintiff were a holder for value, the note being non-negotiable would still be subject to all the defenses and equities which could be urged in a suit brought by the original payee. Tiedman on Commercial Paper, sec. 242. (2) The trial court erred not only in sustaining a demurrer to defendant's defense, but in refusing to sustain defendant's demurrer to plaintiff's case offered at the close of all the evidence. It was not shown by plaintiff that her husband ever delivered the note sued on to her. Without a delivery of the note to her prior to his death, no property interest in the note could possibly vest in plaintiff. The title to the note would pass to his administrator. Becraft v. Lewis, 41 Mo.App. 546; Cowgill v. Linville, 20 Mo.App. 138; Boeger v. Langenberg, 42 Mo.App. 7; Stagg v Linnenfelser, 59 Mo. 336; In re Estate of Soulard, 141 Mo. 657. (3) The release is executed in payment for past services, and on the principle that there is no difference than if he had paid the money. Until this release has been set aside or cancelled for fraud, it constitutes an insuperable barrier against the collection of the note. Hancock v. Blackwell, 139 Mo. 440. It is held that a debt barred by limitation is a sufficient consideration for a new promise. Tiedeman Com. Paper, sec. 162.
Virgil Rule and Bland & Cave for respondent.
(1) The production of the note by plaintiff, and the admission of the execution and indorsement, established prima facie that she is the bona fide holder and owner thereof. This is a universal rule of American and English commercial law. Ern v. Rubinstein, 72 Mo.App. 337; Eyermann v. Piron, 151 Mo. 116; Lachance v. Loeblein, 15 Mo.App. 462; Ashbrook v. Letcher, 41 Mo.App. 371; Bank v. Stanley, 46 Mo.App. 440. (2) What was originally intended as a gratuity can not be subsequently turned into a charge. Lippman v. Tittman, 31 Mo.App. 69; State v. Miller, 48 Mo.App. 118; Folger v. Heidel, 60 Mo. 284. (3) There is an entire failure of proof; for evidence of a gift can not sustain a plea of a transfer for a valuable consideration. Hall v. Kappenberger, 97 Mo. 509; Meyer v. Koehring, 129 Mo. 15. To constitute a valid gift inter vivos, there must be an intention to give and a delivery to the donee, or to some one for him, of the property given. An intention to give is not alone sufficient. The intention must be executed by a complete and unconditional delivery. Becker's Admr. v. Borckman, 70 Mo.App. 508; In re Estate of Soulard, 141 Mo.App. 657; School District v. Shridley, 138 Mo. 672; Strong, Admr. v. Hopkins, 1 Mo. 530. A valid gift of a debt can only be made by delivery to the donee of any evidence of the debt existing; if none, then by a delivery of a receipt in full therefor. 14 Am. and Eng. Ency. of Law, p. 1031; Gray v. Barton, 55 N.Y. 68; Shade v. Mutrie, 156 Mass. 21; Bushwell v. Fuller, 156 Mass. 309; McWillie v. Van Varter, 72 Am. Dec. 127; Carpenter v. Soule, 88 N.Y. 257.
This is an action upon a promissory note in the following terms:
The indorsements on the note are admitted to be genuine. They are as follows:
"April 20 credited by cash two thousand dollars ($ 2,000.00).
(Signed) "H. T. LOWREY."
The plaintiff is the Mrs. H. T. Lowrey mentioned in one of the foregoing indorsements.
The petition follows the ordinary form of a claim upon a note against the defendant who is maker thereof. The allegations concerning the transfer to the plaintiff are that, "before the maturity of said note, said Henry T. Lowrey indorsed the same to plaintiff, whereby the plaintiff became the owner of said note and entitled to payment of the amount mentioned therein."
The answer of defendant contained a general denial, except as to the execution of the note and the payment of $ 2,000 thereon which were admitted. Defendant then sets up a special plea to the effect "that since the year 1868 he performed divers and sundry personal and clerical services for the deceased, Henry T. Lowrey, who was a man of large affairs, and that the said Henry T. Lowrey, recognizing his obligation and indebtedness to the defendant for and on account of such services so rendered him by defendant, revoked and cancelled said note, together with the remaining interest thereon, and released the defendant from any obligation to pay any portion of the remainder of said note for the consideration above stated; such release being in writing and signed by said Henry T. Lowrey and dated August 15, 1899; and defendant says that by means of such release he has been discharged from any and all liability on said note and the same is fully paid and discharged, and he pleads the same in defense of this action."
A reply was filed containing a denial of the new matter in the answer.
At the trial, defendant admitted the indorsements on the back of the note to be genuine. Plaintiff then read the note in evidence and rested.
Defendant without objection (so far as this record discloses) read in evidence the paper mentioned in the answer in these words:
Testimony was admitted to prove the signature of said document to be authentic, and that Mr. Lowrey was dead. When he died does not appear from the abstracts before us now.
Defendant then introduced a witness who gave evidence tending to show that defendant from time to time had rendered valuable services of a clerical character to Mr. Henry T. Lowrey, during a long period of years, and that Mr. Lowrey had expressed the intention to "remember him" (meaning the maker of the note) on that account.
The court excluded an offer of defendant to prove by himself as a witness, the kind and value of the services above mentioned, and that Mr. Lowrey had admitted an indebtedness on that ground. The offer was excluded on the objection that the adverse party to the transaction was dead, and hence defendant was incompetent.
The court also excluded defendant's offer in evidence of a letter sent by mail from plaintiff to defendant, admitted to be genuine, as follows:
The grounds of objection to the admission of that latter were that the plaintiff was not a competent witness on account of the death of Mr. Lowrey, that the letter related to matters of a confidential nature between husband and wife, and that defendant had closed his evidence before the offer was made.
On this case the court gave a binding instruction to the jury to find for plaintiff "in the sum of four thousand dollars together with interest thereon from date of said note at the rate of seven per cent per annum, less the sum of two thousand dollars with seven per cent interest thereon from April 20, 1899, to date."
The jury accordingly returned a verdict for plaintiff for $ 2,360.75, and judgment was rendered thereon from which defendant appealed to ...
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