Mastin Bank v. Hammerslough

• Decision Date: 31 October 1880
• Citation: 72 Mo. 274
• Parties: THE MASTIN BANK v. HAMMERSLOUGH et al., Appellants.
• Court: Missouri Supreme Court

72 Mo. 274

THE MASTIN BANK

v.HAMMERSLOUGH et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

J. D. S. Cook for appellants.

J. H. Lipscomb and Karnes & Ess for respondent.

HENRY, J.

The plaintiff sued defendants in a justice's court on the following note:

$200. Sixty days after date we promise to pay to the Kansas City National Bank $200. October 5th, 1874.

J. R. MARSH,

E. A. STEVENS.

On the back of the note J. W. McIntosh and Hammerslough wrote their names, and not being payees or indorsers, they were joint makers. Powell v. Thomas, 7 Mo. 430; Schneider v. Schiffman, 20 Mo. 571; Baker v. Block, 30 Mo. 225; Chaffee v. Railroad Co., 64 Mo. 193; Semple v.Turner, 65 Mo. 696. Plaintiff filed the note with the justice, but filed no other statement of his cause of action There was a judgment for plaintiff, from which defendants appealed to the special law and equity court, in which plaintiff again had judgment, and defendants have prosecuted their appeal to this court.

2. JUSTICES' COURTS: no written statement necessary in suits on notes.

The defendants, on the trial, objected to the introduction of any evidence on the ground that there was no statement of a cause of action in favor of plaintiff against defendants, and that the filing of the note with the justice was insufficient, as a statement. The statute provides that: “Whenever any suit (in a justice's court) shall be founded on any instrument of writing, purporting to have been executed by the defendant, such instrument shall be filed with the justice before any process shall be issued in the suit.” § 9, Wag. Stat., 813. Section 10 requires the plaintiff, in a suit founded on an account, to file a bill of the items of such account, before any process shall be issued in the suit. Section 13 provides that: “In every suit not founded on an account, or an instrument of writing, a statement of the facts constituting the cause of action shall be filed with the justice before any process shall be issued in the suit.” Section 12, Wagner's Statutes, page 822, authorizes the justice, on the application of the defendant, or on his own motion, to require the plaintiff to make a brief verbal statement of the nature of his demand. We think it manifest, from these provisions taken together, that a written statement of the plaintiff's cause of action is only required when the suit is not on an account, or an instrument of writing which purports to have been executed by defendant. It is true, the note in this case discloses no demand that plaintiff has, as he was neither payee or indorsee; but under section 12 the defendants, when they appeared, could have had a particular verbal statement of the facts upon which plaintiff relied for a recovery, if they desired it. Coughlin v. Lyons, 24 Mo. 534.

The remaining questions to be considered were raised by the evidence and instructions.

It was agreed that the note in question was never discounted by the Kansas City National Bank, was never owned or held by that bank, or any of its officers, or transferred by the bank or any of its officers to any other person, and that it was never presented to that bank for payment. The evidence for plaintiff was to the effect that the note was made with a view to having it discounted at the said National bank for the benefit of Marsh; but the bank having closed for the day, Marsh induced one A. J. Carter to take the note and advance the money, first getting Hammerslough's indorsement, which was not on the note when Carter was first asked to advance the money; that Stevens, after A. J. Carter returned from Texas, whither he had gone the morning after the transaction, asked Carter if Marsh had paid the note, stating that Marsh had promised to do so. W. W. Carter, with whom A. J. Carter left the note when he went to Texas, testified that the day after the note was made he went to see Hammerslough and...