Merchants' Nat. Bank v. Brisch

• Decision Date: 03 January 1910
• Citation: 124 S.W. 76,140 Mo. App. 246
• Parties: MERCHANTS' NAT. BANK v. BRISCH et al.
• Court: Missouri Court of Appeals

124 S.W. 76

140 Mo. App. 246

MERCHANTS' NAT. BANK v. BRISCH et al.

Springfield Court of Appeals. Missouri.

January 3, 1910.

1. BILLS AND NOTES (§ 538) — ACTION — INSTRUCTIONS.

In an action on notes given for the price of a threshing machine, the answer alleged that the agent of the payee guaranteed that the freight on the machine would not exceed $100, and represented that a contract he presented for defendant's signature contained such provision, that the freight did exceed such sum, and defendant refused to accept the machine. The contract signed was not offered in evidence. Held, that an instruction that, if the note was obtained by fraud, it devolved on the holder to show itself a bona fide purchaser, was not warranted.

2. FRAUD (§ 11) — WHAT CONSTITUTES — REPRESENTATIONS.

A representation by the seller of a machine that the freight upon it would not be over a certain amount, when in fact the freight did exceed that amount, was not a representation on which an action for fraud could be based.

3. SALES (§ 21) — FAILURE OF CONSIDERATION.

Where the seller of a machine guaranteed that the freight thereon would not be over a certain amount, and, when the purchaser tried to get possession of the machine, the same was forbidden by the carrier until he had paid freight in excess of the amount stipulated, and the purchaser refused to take the machine, the consideration for notes given for the purchase price failed.

4. SALES (§ 177) — PERFORMANCE OF CONTRACT.

Under the facts, the purchaser had a right to refuse to take the machine.

5. SALES (§ 339) — BREACH BY PURCHASER — RIGHT OF SELLER.

Where the purchaser of a machine refused to accept it, and the seller resold it together with a secondhand machine given as part of the purchase price, the purchaser would be liable for any balance of the purchase price.

6. BILLS AND NOTES (§ 146) — STATUTORY PROVISIONS.

The negotiable instrument law of 1905 has no application to a note executed prior to the taking effect of the statute.

7. BILLS AND NOTES (§§ 493, 497) — ACTION ON NOTE — BURDEN OF PROOF.

Prior to the negotiable instrument law of 1905, in an action on a note as against a purchaser before maturity, the maker was bound to show, by a greater weight of evidence, a want of consideration, but plaintiff was bound to show that he purchased without knowledge of fraud.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by the Merchants' National Bank against Gottlib Brisch and another. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.

Jones Bros. and C. H. Shubert, for appellant. Watson & Holmes, for respondents.

GRAY, J.

This is a suit on a promissory note bearing date June 12, 1905, for $630, due on or before the 1st day of October, 1907, payable to the order of Russell & Co., an Ohio corporation, and payable at the Rolla State Bank, Rolla, Mo., with interest from date at the rate of 6 per cent. per annum, payable annually. The suit was commenced by the Merchants' National Bank, claiming to have purchased the same for value, in the usual course of business, on the 9th day of February, 1907. The answer alleged that in April, 1905, one H. W. Mitchell, an agent of the payee, persuaded the defendants to purchase a threshing outfit to be delivered to the defendants about the 1st of June, at the town of Russell, state of Kansas. It was alleged that the defendants agreed to give for said machine a secondhand separator and to execute their three promissory notes, amounting to $1,910; that at the time said contract was entered into the said agent represented and guaranteed that the freight on the new outfit to the point where it was to be delivered would not exceed $100. It was further alleged that the defendants were foreigners, wholly unable to read or write the English language, or to talk or understand the same, and that the said Mitchell, knowing these facts, prepared a written contract, and falsely represented to the defendants that said written contract contained only the agreements heretofore set out, and that the defendants, being unable to read said contract, relied upon the representation of said Mitchell. It was further alleged that the defendants went to the town of Russell in June to receive said machine, but the same did not arrive until July 3 of said year, and, when it did arrive, a bank at Russell, in behalf of the payee, presented a bill of lading for freight charges, amounting to over $300. The defendants further alleged that they then had the written contract examined, and found that it did not contain the conditions of the trade in regard to...