Lueckenhoff v. Wuelling, 19009.

CourtCourt of Appeal of Missouri (US)
Citation112 S.W.2d 357
Decision Date10 January 1938
Docket NumberNo. 19009.,19009.
PartiesLUECKENHOFF, Public Administrator, v. WUELLING et al.

Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Action on a promissory note by H. M. Lueckenhoff, public administrator in charge of the estate of Edward Gaume, deceased, against George Wuelling and others. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

H. BalkenBush, of Linn, for appellants.

J. H. Mosby and John P. Peters, both of Linn, J. R. Garstang, of Chamois, Marion R. Garstang, of Linn, and Leslie B. Hutchison, of Vienna, for respondent.

SHAIN, Presiding Judge.

This is an action on a promissory note wherein, in a trial before jury, verdict was for plaintiff for the face of the note, together with interest, and also for attorney fees provided for in the note.

Judgment was entered for plaintiff in conformity with the jury verdict, and defendants have appealed.

To conform to position in trial court, we will continue to refer to appellants as defendants, and respondent as plaintiff.

Owing to the condition of the record filed in the court, there are presented almost unsurmountable difficulties.

The abstract of the record gives the pleadings upon the part of plaintiff and defendants, the verdict, the judgment, motion for new trial, recites that motion for new trial was filed, and recites that an appeal was perfected.

The bill of exceptions in the record appears in a very abridged form and, judged from the briefs filed in the case, the record is silent as to matters whereof error is claimed. Further, much of the evidence is in narrative form wherein the rule of this court is violated in that the narration of the evidence is not given in the language of the witness. The narration is, in effect, the conclusions of the narrator as to what was sworn to by the witness.

As gleaned from the record and briefs filed in the case, we deem it advisable to, as best we can, make a statement of facts and issues as presented in the trial of the case.

It will be noted that some of the facts stated by us are not found in the abstract, but are taken from briefs. However, our statement is not intended as binding either party by what the other party states in his brief and not found in the record. Our statement is for the purpose of better explaining our conclusions as to the course followed by this court in review and disposition of the case.

We glean from the brief filed by plaintiff, respondent herein, that one Edward Gaume died in 1932, in Osage county, testate, and that his widow was appointed executrix. We glean from the same source that the will of Gaume was contested, and that pending the contest, which was afterward determined by the Supreme Court upholding the will, one P. J. Paulsmeyer, stated by plaintiff in his brief as the cashier of the Peoples Bank of Chamois, was appointed administrator ad litem pending the contest. Concerning the said Paulsmeyer, plaintiff's statement says: "* * * P. J. Paulsmeyer committed suicide, and the evidence, by inference at least, shows that prior to Paulsmeyer's death the Peoples Bank of Chamois, of which he was cashier, failed."

The following is shown in the bill of exceptions filed herein:

"H. M. Lueckenhoff, plaintiff herein testified as follows:

"That he was the public administrator of Osage County and administrator in charge of the Estate of Edward Gaume, deceased; that he was appointed sometime in October, 1936; that among the assets turned over to him as belonging to the Estate of Edward Gaume he received a note or evidence of debt executed by George Wuelling, Louise Wuelling and Henry Wuelling which he identified as plaintiff's Exhibit `A,' which said Exhibit `A' is in words and figures, as follows, to-wit:

                              "Chamois, Mo., Aug. 29, 1934
                "$1175.75                           $1175.75
                

"On demand, and if no demand is made, then one year after date, we promise to pay to the order of Peoples Bank of Chamois, Chamois, Mo. Eleven Hundred Seventy Five 75/100 Dollars. For value received, negotiable and payable without defalcation or discount at the Peoples Bank of Chamois, Chamois, Missouri, with interest at the rate of 6 per cent, per annum payable annually from date and if the interest be not paid annually to become as principal and bear the same rate of interest; and if this note shall not be paid at maturity and shall be placed in the hands of an attorney for collection, the undersigned further promise to pay, as attorney's fees for collection, ten per cent additional on the full amount due hereon. All parties hereto and all endorsers hereon jointly and severally waive demand, notice of nonpayment when due demanded, protest and notice thereof.

                                    "Geo. Wuelling
                                    "Louise Wuelling
                                    "Hy. Wuelling
                

"(Endorsed `Peoples Bank of Chamois, P. J. Paulsmeyer, Cashier') that witness received Plaintiff's exhibit `A' from Mrs. Venona Paulsmeyer, widow of P. J. Paulsmeyer, through her attorney, Marion Garstang."

The suit on above note was instituted by filing of petition by said Lueckenhoff, public administrator aforesaid. The petition, after reciting averment as to appointment and qualifying as administrator in charge of the estate of Edward Gaume, deceased, declared, in part, as follows:

"Plaintiff for cause of action against said defendants states that the Defendants by their certain promissory note date August 29th, 1934, promised, for value received to pay to the order of the Peoples Bank of Chamois, the sum of Eleven hundred seventy-five and 25-100 dollars, on demand, and if not demand be made, then one year after the date thereof, with interest thereon from date at the rate of six per centum per annum, compounded if not paid annually when due; that, in and by the terms of said note the said defendants promised to pay an additional ten per centum of said amount, in case the said note was placed in the hands of an attorney for collection.

"That said note was by the Peoples Bank of Chamois, by proper endorsement duly sold and transferred for value, to the estate of Edward Gaume, the said promissory note, and that the Plaintiff is now the holder of said note in due course."

All defendants answer by general denial.

Henry Wuelling, further answering, states:

"First: That he signed the note sued on in plaintiffs petition as an accommodation maker to accommodate the payee of said Note, The Peoples Bank of Chamois, at the special instance and request of the agents, servants and employes of said Peoples Bank of Chamois, a Banking Corporation. Who represented to Defendant Henry Wuelling that the bank was in a failing condition and needed something to show the Bank Examiners who were expected any day that the bank was making progress towards setting the Bank in order, and that defendant Henry Wuelling would never be called upon to pay any part of said note.

"That defendant Henry Wuelling received nothing of value for signing said note, nor was anything of value given by the Peoples Bank of Chamois in return for said note, and that the same is wholly without any consideration.

"That defendant Henry Wuelling signed said note upon the fraudulent representations of the agents and servants of the Peoples Bank of Chamois.

"Second: That P. J. Paulsmeyer had no authority to sell or hypothecate the note sued upon in plaintiff's petition, and that he well knew that the note was not given for anything of value, and that the same was merely an accommodation of the payee in said note the Peoples Bank of Chamois, and that the same was not to be presented for payment.

"Third: That the Estate of Edward Gaume is not the legal holder of said note, and the said estate has no title or interest to or in said note. That the administrator of the estate of Edward Gaume had no Authority to invest the funds belonging to said estate in the note sued upon, and P. J. Paulsmeyer was cashier of the Peoples Bank of Chamois at all times he was the Lawfully appointed administrator ad litem, and had full knowledge of the infirmities of the note sued upon, and had no authority to sell or transfer any assets of the Peoples Bank of Chamois to the Gaume estate and could not.

"Wherefore defendant Henry Wuelling having fully answered prays the court that the plaintiff take nothing on his petition from him, that he may go hence without day and recover his costs in this behalf expended."

George Wuelling, further answering, states: "That the note sued upon was given by George and Louise Wuelling without any consideration."

Plaintiff replies by general denial, as to allegations set up in each of defendants' answers.

The principal contention of defendants in this case is based upon the claim that the plaintiff has not produced sufficient proof to establish the alleged fact that the Peoples Bank of Chamois had by proper indorsement duly sold and transferred for value, to the estate of Gaume, so as to establish that plaintiff was holder of the note in due course.

On the question of ownership of note by the Gaume estate, the following from the probate records of Osage county, Mo., is shown, to-wit:

"In the matter of the Estate of Edward Gaume, Deceased.

"Exhibits Pertaining to Inventory of the Property Turned Over to the Present Administrator H. M. Lueckenhoff.

"In the Probate Court of Osage County, Missouri, May Term, 1936.

"Now comes Vanona Paulsmeyer, Executrix of the estate of P. J. Paulsmeyer, deceased, and respectfully represents to the Court that the said P. J. Paulsmeyer, was, at the time of his death the duly appointed, qualified and acting administrator ad litem of the estate of Edward Gaume, deceased; that said P. J. Paulsmeyer died on the 27th day of December, 1935; that thereafter your petitioner, Vanona Paulsmeyer was duly appointed and qualified as Executrix of the estate of said P. J. Paulsmeyer, deceased, and...

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7 cases
  • Wolf v. Wuelling
    • United States
    • Court of Appeals of Kansas
    • 8 May 1939
    ...and defendant appealed. The judgment had at former trial was reversed and cause remanded. Our opinion or former review is reported in 112 S.W.2d 357. was had in the Circuit Court of Osage County, Missouri, in June, 1938. The trial was before a jury resulting in a verdict for defendants. Jud......
  • Stratman v. Norge Co. of Missouri
    • United States
    • Court of Appeals of Kansas
    • 9 January 1939
    ...l. c. 358. (5) A finding of fact by the trial court is conclusive on appeal when the evidence is not set out in the record. Lueckenhoff v. Wuelling, 112 S.W.2d 357. (6) A who prevailed in the trial court is entitled to have full effect of the testimony favorable to his judgment considered o......
  • Baker v. Tener
    • United States
    • Court of Appeal of Missouri (US)
    • 10 January 1938
  • Neidert v. Terrill, 6788.
    • United States
    • Court of Appeal of Missouri (US)
    • 7 December 1948
    ...Bernie v. Blades, 215 Mo.App. 459, 247 S.W. 806; Wade et al. v. Boone, 184 Mo.App. 88, 168 S.W. 360; Lueckenhoff v. Wuelling, Mo. App., 112 S.W.2d 357; Nance v. Hayward, 183 Mo.App. 217, 170 S.W. 429; Capitol Hill State Bank v. Rawlins Nat. Bank of Rawlins, 24 Wyo. 423, 160 P. 1171, 11 A.L.......
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