Mechanics' Bank v. Wright

• Decision Date: 31 July 1873
• Citation: 53 Mo. 153
• Parties: MECHANICS' BANK, Respondent, v. T. P. WRIGHT, et al., Appellants.
• Court: Missouri Supreme Court

53 Mo. 153

MECHANICS' BANK, Respondent,

v.T. P. WRIGHT, et al., Appellants.

Supreme Court of Missouri.

July Term, 1873.

Appeal from Benton Circuit Court.

F. P. Wright and Johnson & Botsford, for Appellants.

I. Parol testimony was admissible to show that Ballow was the only principal, and that the defendants were securities. (Foster vs. Wallace, 2 Mo., 231; Garret vs. Ferguson's Admr. 9 Mo., 125.)

II. There was a general settlement between the Bank and Ballow, and a balance found due to Ballow. There is a legal presumption that a note made by Ballow and others, past due at the time of the settlement, was taken into consideration and paid, unless it appears that it was expressly excepted therefrom.

F. N. Judson, and Cline, Jamison & Day, for Respondents.

I. All the makers of the note sued on were equally liable to the plaintiff on the note sued upon, whatever may have been their relation to each other.

II. If the note in controversy is claimed by the defendants to have been included in any settlement between the plaintiff and Ballow, it was for the defendants to show that fact. They

may have had many settlements of various or particular matters existing between them, and yet this raises no presumption that the note in question, which is still owned and held by the plaintiff, was included in any such settlement.

WAGNER, Judge, delivered the opinion of the court.

This was a suit instituted upon a promissory note executed by DeWitt C. Ballow, together with the defendants and one Kays. Ballow died previous to the bringing of the action, and the plaintiffs compromised with Kays and released him, and the defendants were alone sued. The defendants, as a part of their defense, set up in their answer, that Ballow was the principal in the note and alone received the benefits thereof, and that the other signers were mere securities, and that this fact was known to the plaintiffs when the note was made. It was also alleged that Ballow was attorney for the plaintiff and had transacted a large amount of business for it, and that upon a settlement subsequent to the time the note became due, plaintiff owed Ballow and paid him a balance in money. From this fact the inference was sought to be drawn, that the note was paid off. But no evidence was given tending to establish this theory, and the replication positively denies, that the note was paid by Ballow or taken into account at the settlement. At the trial the court refused to permit defendants to show that they signed the note as securities, and under these instructions the jury gave a verdict for the plaintiff. The cause is now brought here for review, and the errors assigned are: First, That the court erred in excluding the evidence to prove that defendants were sureties; and second, that error was committed in giving and refusing...