Mechanic's Bank v. Fowler

• Decision Date: 31 July 1865
• Citation: 36 Mo. 33
• Parties: MECHANIC'S BANK, Defendant in Error, v. SAMUEL FOWLER, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

36 Mo. 33

MECHANIC'S BANK, Defendant in Error,

v.SAMUEL FOWLER, et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1865.

Error to Benton Circuit Court.

F. P. Wright, for defendant.

The court clearly erred in striking out the answer.

I. Plaintiffs only claim of either is the alleged endorsement of Acock, and this averment the answer specifically denies, and also denies that plaintiff is the owner and holder of the note. Plaintiff could not recover without proving the assignment and title to the note. (Mechanic's Bank v. Donnell, 35 Mo. 373.

II. The endorsement being a forgery can found no title, and plaintiff has no right of action; and clearly so, as it was done by an officer of the bank and agent of plaintiffs. An endorsement is a new contract, by which the endorsee acquires title; and this contract being void, no right accrued to plaintiffs. (Bai. Bills, 149.) The makers are not liable by reason of a forged endorsement. (Hall v. Fuller, 5 Barn. & Cres. 750; Smith's Merc. L. 195-6.)

III. A note obtained by fraud and imposition is void between the original parties, in accordance with the dictates of natural justice, recognized in the jurisprudence of every civilized country. (Sto. Prom. N. 221, § 188.)

IV. The cutting off the signature of one of the makers of the note was a material alteration, and avoided the note. (Trigg v. Turner, 27 Mo. 245; Sutten v. Turner, 7 Barn. & Cres. 416.)

V. The answer denies the averment of excuse for not demanding payment and giving notice; and defendants insist that they are not in default or liable to an action. All this is denied. This part, of the answer having been stricken out, the question is properly presented.

WAGNER, Judge, delivered the opinion of the court.

This case must be reversed. The petition states that Fowler and Williams made their negotiable promissory note, payable to the order of B. F. Acock, for the sum of ten thousand seven hundred and thirty-eight dollars eighty-one cents, dated the 5th day of September, 1861, due twelve months after the date thereof, which said note was payable at the branch of the Mechanic's Bank at Warsaw, Missouri. That the said Acock, the payee, by his written endorsement thereon, and for a valuable consideration, sold and delivered the said note to plaintiff. The note was not presented at the bank when it became due and payable, nor was it protested; but there is an averment, that it was impossible on account of the rebellion to have the note presented and protested at that time.

Acock was not served with process. Fowler and Williams appeared and filed their answer.

Their answer alleges that the note was obtained by fraud and imposition; that the assignment was fraudulent and forged, and that the plaintiff took said note with knowledge of these facts. They further allege that,...