Maguire v. Donovan

• Decision Date: 13 December 1904
• Citation: 84 S.W. 156,108 Mo. App. 511
• Parties: MAGUIRE et al. v. DONOVAN et al.
• Court: Missouri Court of Appeals

84 S.W. 156

108 Mo. App. 511

MAGUIRE et al. v. DONOVAN et al.

St. Louis Court of Appeals. Missouri.

December 13, 1904.

NOTES — ASSIGNMENT — PAYMENT TO PRIOR HOLDER.

1. The maker of a note is not released from liability thereon by payments, after its second transfer in the usual course of business, to the first assignee, who did not have possession thereof, and was not the actual or ostensible agent of the owner; and it is immaterial that such person to whom payment was made was the trustee in the deed of trust to secure the note.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Suit by Mary Maguire and another against Joseph T. Donovan and others for surrender of a note and satisfaction of a deed of trust. From an adverse judgment, plaintiffs appeal. Affirmed.

J. J. O'Donohoe, for appellants. Chas. E. Thomas, for respondents.

REYBURN, J.

On the 14th of May, 1888, appellants negotiated a loan for $2,500, through defendant Joseph T. Donovan, a real estate agent of the city of St. Louis, and, for principal and interest accruing, executed, by attaching severally their mark in lieu of individual signature, a principal note for that sum, maturing in five years, and 10 semiannual interest notes, each for $75, all without place of payment named, and made payable to defendant Giraldin, then employed in Donovan's office, and secured payment of such notes by deed of trust on appellants' realty in city of St. Louis, naming Donovan as trustee therein; and the notes, indorsed without recourse by Giraldin, a mere accommodation payee, were delivered to Donovan, who, at a time not accurate by fixed date, but in 1891, and prior to maturity of the loan, sold it to Wm. Booth & Co., real estate agents in the city of St. Louis, and delivered the principal and nonaccrued interest notes to that firm, which subsequently transferred the investment to the account of defendant Marie De La Pierre, a nonresident customer, but retained possession and control of the notes thereafter, and, until paid, none of the notes purchased were in Donovan's possession at any time. Anterior to their transfer, appellant Mary Maguire, an illiterate woman, had paid the interest notes at Donovan's office receiving them from him or his employés at his instruction, and this usage continued unchanged and unaffected by change in their ownership; and at maturity, May 14, 1893, $1,400 was thus paid and credited by an indorsement on the principal note, which also incorporated a renewal of the balance of $1,100 for 30 months from that date, the interest for period of renewal being represented by five semiannual interest notes, for $33 each, executed to order of the J. T. Donovan Real Estate Company, and by it indorsed without recourse by its president, Donovan, and delivered to Wm. Booth & Co. This appellant, after this renewal, continued to make all payments at Donovan's office, but, after the loan was acquired by Booth, the notes, when delivered by Donovan to her, were marked with date of payment, and words "Paid, Wm. Booth & Co." Additional to payment of interest notes maturing, this appellant paid Donovan to May 14, 1898, $700, composed of smaller sums, an account of which, as well as of interest payments, was kept in a series of entries in a book of account between the appellants and the J. T. Donovan Real Estate Company for that purpose. May 14, 1896, appellant Thomas Maguire executed four semiannual notes, for $15 each, to order of the J. T. Donovan Real Estate Company; and again on May 14, 1898, both appellants, Mary Maguire and her husband, executed four semiannual interest notes for $12 each, all purporting to be for interest accruing at six-months intervals on balance then unpaid on principal note, and delivered all of them to Donovan, directing him to reduce the balance of the principal by application from time to time of the $700, and being led by him to believe such application had been made. Mrs. Maguire testified she was not aware of the transfer of the loan to Booth, and was kept in ignorance of it by Donovan, so continued to make payments at the office of the latter, but, being unable to read or write, she could not swear that the notes were in Donovan's office after their transfer, or that the indorsement acknowledging partial payment of $1,400 and extending balance was made there. On the other hand, the bookkeeper of Booth & Co. deposed that such indorsement was in his handwriting and made in their office; and Papin, of the same firm, testified that, when the interest notes were about to fall due, they would send notice of approaching maturity to appellants, in care of Donovan, and a like notice addressed to them through the general delivery department of the post office, and, in response to such notification, Donovan, or some one in his employ, would take up the due note at office of Booth & Co. This practice was adhered to, after the principal note fell due and the interest notes received by Booth & Co had been thus taken up, till, in 1901, appellants discovered that Donovan had long prior parted with possession and ownership of the notes, and thereafter, until May, 1902, the appellants dealt directly with ...