Massa v. Huehnerhoff, 22347.

• Decision Date: 02 May 1933
• Docket Number: No. 22347.,22347.
• Citation: 59 S.W.2d 723
• Parties: MASSA v. HUEHNERHOFF.
• Court: Missouri Court of Appeals

59 S.W.2d 723

MASSA v. HUEHNERHOFF.

No. 22347.

St. Louis Court of Appeals. Missouri.

May 2, 1933.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by David J. Massa against Walter Huehnerhoff. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Roy H. Bergmann and Oakley & Frank, all of St. Louis, for appellant.

George E. Mix, of St. Louis, and Wurdeman, Stevens & Hoester, of Clayton, for respondent.

BENNICK, Commissioner.

This is an action upon a negotiable promissory note for $818, bearing interest at the rate of 6 per cent. per annum, and due five months after date, which was executed on September 28, 1927, by defendant, Walter Huehnerhoff, and one Louis J. Ziemann in favor of David J. Massa, the plaintiff herein.

Though Ziemann was also named as a party defendant in the petition, no service was had upon him, and at the beginning of the trial plaintiff voluntarily dismissed as to him. The case was tried to a jury; and at the close of all the evidence the court peremptorily directed a verdict in favor of plaintiff for the principal amount of the note, with interest in the sum of $196.32, aggregating the sum of $1,014.32. Later plaintiff voluntarily remitted the item of interest included in the verdict upon the theory that the court had been without authority to calculate the same for the jury; and, his motion for a new trial having been overruled, defendant has duly appealed.

The petition alleged the execution of the note; that it had become due and payable; that plaintiff had demanded payment of the defendants, who had refused to pay all or any part thereof; and that there was due to plaintiff the principal and interest on the note.

The answer of defendant was a plea that the note as to him was without consideration, in that it had been signed by him as an accommodation maker to accommodate plaintiff as payee.

The reply was in the conventional form.

The controversy arises out of the sale of two Chrysler automobiles on March 28, 1927, by plaintiff, who was then doing business under the firm name of the Mosley-Massa Motor Car Company.

Ziemann is defendant's father-in-law. Plaintiff's evidence disclosed that defendant and Ziemann, after certain preliminary negotiations, came to plaintiff's place of business on the day in question, and that each bought an automobile, and in due course received a certificate of title to it. The consideration for the whole transaction seems to have been $2,318. Plaintiff testified that he made the two men a proposition that he would not take a mortgage on the cars, but would accept a personal note if defendant would sign it; it being plaintiff's understanding that defendant owned property in St. Louis. Ziemann thereupon gave plaintiff a cashier's check for $1,500; and a note for the balance of $818, due six months after date, was executed by both Ziemann and defendant.

According to plaintiff's evidence, on the due date of the note defendant paid the accrued interest, whereupon, at defendant's request, arrangements were made for the note in suit to be executed in renewal of the original note. The new note was thereupon prepared and Ziemann's signature obtained to it; and a day or so later defendant also signed it when it was presented to him by plaintiff at his residence for his signature. On the next day defendant's wife went out to plaintiff's place of business and received the original note from him.

So much for plaintiff's evidence, which was strongly contradicted in many of its material aspects by the evidence of defendant.

Defendant admitted that he and Ziemann were at plaintiff's place of business on March 28, 1927, but he denied that he had ever met plaintiff before; that anything was said about the sale of an automobile to him personally; that he knew that he was to receive title to one of the automobiles; or that he bought an automobile.

According to defendant's version of the transaction, both automobiles were bought by Ziemann; it being the latter's intention to keep one of them for himself and to give the other to his daughter, who is defendant's wife. Defendant testified that Ziemann gave plaintiff the check for $1,500, and that plaintiff thereupon requested him to sign the note for the balance due along with Ziemann so that the note could be "sent to the bank." Defendant objected upon the ground that, if his wife was to receive the present of an automobile from her father, he didn't want "any strings attached to it." Plaintiff then assured him that, if he would sign the note, he (the plaintiff) would give him a paid-up bill and a clear title to the car, and at no time would look to him for payment; and upon such conditions defendant signed the note.

Plaintiff then procured a certificate of title to the one automobile, showing title to be in defendant and free of all incumbrances or indebtedness. Prior to the time that defendant signed the note, plaintiff gave him a receipted bill of sale, showing that the automobile had been sold to Ziemann and defendant jointly, and had been paid for in full. Shortly thereafter defendant again went out to plaintiff's place of business and got the automobile, which he took to his home and drove for about fifteen months.

Defendant testified that he paid nothing to plaintiff for the automobile either at the time of the transaction or afterwards, and he pointedly denied that he paid the interest on the original note. When the note fell due and the renewal note was drawn, plaintiff again asked defendant to sign it, and again defendant objected. Plaintiff thereupon argued with him to the effect that he had signed the first note so that it could be "sent to the bank," and that the bank would not "renew this note" without defendant's signature. The same proposition as to exemption was then advanced by plaintiff, and, upon plaintiff's assurance that he would never hold defendant on the note or look to him for payment, the latter signed it.

Defendant testified positively that Ziemann was not present when he signed the note, and had nothing to do with obtaining his signature to it, and that he did not sign it for Ziemann's accommodation but at plaintiff's request and under the circumstances and conditions testified to.

Defendant's wife corroborated his testimony in all substantial particulars.

The chief insistence of defendant is that the court erred at the close of all the evidence in peremptorily directing a verdict for plaintiff; his point being that there was an issue for the jury under the evidence upon the defense asserted that he was but an accommodation maker of the note and that no consideration had passed to him from plaintiff. We think this point is well taken for reasons which will presently appear.

An accommodation maker is defined by statute (section 2658, R. S. 1929; Mo. St. Ann. § 2658), to be one who signs the instrument without receiving value therefor, and for the purpose of lending his name to some other...