Metropolitan Discount Co. v. Wasson

• Decision Date: 05 December 1921
• Docket Number: No. 3008.,3008.
• Citation: 235 S.W. 465
• Parties: METROPOLITAN DISCOUNT CO. v. WASON et al.
• Court: Missouri Court of Appeals

235 S.W. 465

METROPOLITAN DISCOUNT CO. v. WASON et al.

No. 3008.

Springfield Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Action by the Metropolitan Discount Company against W. B. Wasson and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Moore, Barrett & Moore, of Ozark, for appellant.

G. Purd Hays, of Ozark, for respondents.

COX, P. J.

Action upon three trade acceptances. Verdict for defendants, and plaintiff has appealed.

The defendants were partners in the drug business at Nixa., Mo., under the firm name of W. B. Wasson & Son. On June 4, 1920, defendants purchased from the National Novelty & Import Company, a corporation, a bill of goods consisting of notions, jewelry, silverware, hand bags, rings, watches, etc., amounting to $238.80, and executed three trade acceptances of $79.60 each to the seller due in three months from date. The goods were shipped to defendants but they refused to receive them. About June 28, 1920, these trade acceptances, which were in form negotiable, were sold by the National Novelty & Import Company to the plaintiff at a discount "of 10 per cent. The petition is in the usual form in three counts. The answer is a general denial and an attempt to plead fraud and a plea of alteration of the instruments without the consent of the defendants.

We shall first notice the attempted plea of fraud, which is as follows:

"Further answering, defendants say that the three trade acceptances were obtained from the defendants fraudulently and without consideration under and by virtue of a certain contract between the National Novelty & Import Company and the defendants, and that said contract was obtained fraudulently and without consideration, and that said contract was void."

This attempted plea of fraud alleges no fact constituting fraud and is wholly insufficient to raise an issue of fraud. However, it was not attacked at the trial, and one of the defendants testified as to what he knew about the matter and after an examination of his testimony, we fail to find any evidence on which to base a charge of fraud. This paragraph of the answer can do no more than raise an issue of want of consideration.

The evidence shows that the name of the payee in the acceptances was indorsed on the back of each with a rubber stamp, and no signature of any officer of the payee attached until after this suit was filed. This omission seems to have been discovered when depositions were being taken in St. Louis and the signature of Louis Scoville, secretary treasurer of the indorser, who was the officer of the corporation who had sold...