Main Street Bank v. Werner

• Decision Date: 11 June 1928
• Docket Number: No. 16355.,16355.
• Citation: 7 S.W.2d 723
• Parties: MAIN STREET BANK v. WERNER et al.
• Court: Missouri Court of Appeals

7 S.W.2d 723

MAIN STREET BANK v. WERNER et al.

No. 16355.

Kansas City Court of Appeals. Missouri.

June 11, 1928.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

Action by the Main Street Bank against P. E. Werner and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Harzfeld, Beach & Steeper, of Kansas City, for appellant.

Reinhardt & Schibsby, of Kansas City, for respondent.

WILLIAMS, C.

This is a suit on a promissory note, and comes to us from the circuit court of Jackson county.

The evidence shows that defendant Werner borrowed money from appellant bank, and that the other defendants signed the note as accommodation makers, which was well known to the bank at the time the money was loaned. The note sued on was a renewal of the original note. When the note became due, the accommodation makers refused to sign the renewal. Werner asked appellant's cashier to let him renew the note, and, at appellant's request, Werner gave his note, dated July 11, 1924, for $900, due in 90 days, and agreed to pay interest at the rate of 8 per cent. from date. As a part of the same transaction, Werner gave appellant bank his eight post dated checks on another bank for the total sum of $900. The first one of these post dated checks came due on July 31, 1924, for the sum of $100, and was paid. On October 15, 1924, another check of $133.33 was paid. These payments were entered on the back of the note, which was signed only by Werner; the notation being made by the teller's rubber stamp. On the note sued on, these entries were made in longhand. On February 20, 1925, a check of $200 was paid. This payment paid the interest to maturity. That the note signed only by Werner and the post dated checks were taken without the knowledge or consent of the accommodation makers, Reinhardt or Froehling seems to be conceded.

After the taking of this note, appellant bank wrote Reinhardt that it had taken these notes "for the payment of this note" (meaning the original). In the letter there was no mention of the taking of a new note. No demand was made by the bank on the accommodation makers until after the maturity of the note signed only by Werner. There was a collateral note of $1,000, secured by a real estate mortgage. This collateral was foreclosed and bought in by the bank at its own sale for $1. After the note, signed only by Werner, became due and was not paid, suit was brought on the original note.

The testimony of Werner conflicts with the testimony of the cashier of plaintiff bank. Werner testified that he told the cashier of appellant bank that the accommodation makers would not sign the renewal note. Werner further testified that he made a payment of $100 on the original note about the time it was due and told the cashier he could not pay the remainder. The cashier then stated they could not have any past-due notes in the bank, and Mr. Werner told the cashier that he could pay the balance within 60 or 90 days. Mr. Werner testified that at the request of the cashier of plaintiff bank, he offered a note for $900, and made out checks post dated for the amount and paid on this amount $465; that there was nothing said, as far as the witness could remember, about reserving any rights against Reinhardt and Dr. Froehling at the time of giving the new note; that there was never any demand made by Werner for the return of the old note. On cross-examination, this question was asked:

"Did he (meaning appellant bank's cashier) agree to accept it as payment of the old note?" A. "It was given in lieu of the old note."

The evidence further shows that the cashier of appellant bank was a stockholder in a company organized by Werner, and he had given nothing for the stock. At the close of the evidence, plaintiff asked a directed verdict, which the court declined to give. The case was submitted to the jury, and the jury found for the defendant. Plaintiff, after an unsuccessful motion for a new trial, brings the case here on appeal.

It is first contended that the abstract of the record filed by appellant does not comply with the rules of this court. We think, under the ruling of the Supreme Court in State ex rel. Wallace State Bank v. Trimble, 308 Mo. 278, 272 S. W. 72, this court must consider the abstract of the record as being sufficient.

It is also contended that instructions No. 4 and No. 5 are inconsistent with instruction No. 3, given on behalf of the plaintiff. Instruction No. 4 tells the jury that, if the bank accepted the post dated checks and the note, without the consent of the accommodation makers, plaintiff could not recover. The instruction claimed to be in conflict with this declaration, tells the jury that the execution and delivery of the second note and the post dated checks are not by themselves evidence of an agreement by the plaintiff to accept them in payment and discharge for the note sued on. We see no conflict between these instructions. Under instruction No. 4, the jury is required to find that the note and checks were taken as payment of the first note. Instruction No. 3 simply says that the delivery of the note and check are not, of themselves, evidence of the extension of time. In support of this argument, appellant quotes the testimony of the...