Miller v. Chinn

• Decision Date: 26 June 1920
• Docket Number: No. 13351.,13351.
• Citation: 223 S.W. 767
• Parties: MILLER v. CHINN.
• Court: Missouri Court of Appeals

223 S.W. 767

MILLER v. CHINN.

No. 13351.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Howard County; A. H. Waller, Judge.

"Not to be officially published."

Action by Waller C. Miller against William E. Chinn. From judgment for defendant, plaintiff appeals. Reversed, and cause remanded.

John Cosgrove, of Kansas City, for appellant.

Paul P. Prosser, of Denver, Colo., for respondent.

ELLISON, P. J.

Plaintiff's action is based on a promissory note dated the 25th of January, 1912; the consideration being an interest in certain farming lands and personal property in the state of Mississippi. The note is negotiable and was executed by defendant to Ed. P. Miller, a brother of plaintiff. It was indorsed for value, before maturity, to the Bank of New Franklin, which bank thereafter, but before maturity indorsed to plaintiff.

The defense was that when defendant signed the note he was so incapacitated from intoxication as to be unable to contract, and that afterwards, claiming to have been overreached by the payee, Ed. P. Miller, he and Miller rescinded the contract by turning back to him the property received. That this was done before Miller transferred the note to the bank and before the bank transferred it to plaintiff. The further defense is made that plaintiff is not an innocent purchase" from the bank; that in the transaction with the bank he was acting for his brother, Ed. P. Miller.

This is the third appeal of the case; the other two will be found reported in 195 S. W. 552 and 203 S. W. 212. The facts disclosing a history of the case are complicated, and we refer to these reports for further detailed statement.

At the last trial, as in the other two, defendant pleaded and undertook to show (by much the same testimony) that when he signed the note he was so mentally lost and incapacitated by drunkenness as to be incapable of understanding what he was doing. At the first trial the circuit court ruled there was a total failure of proof of this, and we approved that view. 195 S. W. 552, 553, par. 6. And we were of the same opinion at the second trial. 203 S. W. 216, last half of first column. And we remain of that opinion of the last trial; indeed, defendant himself seems to have abandoned that claim by failing to submit an instruction on that head. Walker v. Railroad, 193 Mo. 453, 469, 92 S. W. 83. Plaintiff asked an instruction No. 8, declaring there was no evidence of defendant's intoxication when he executed the note, but it was refused and we think erroneously. The same may be said of the charge of fraudulent conduct on part of Ed. P. Miller in inveigling defendant into the contract. It is true that plaintiff asked and obtained an instruction submitting to the jury whether defendant was intoxicated and incapacitated,. but this was after his peremptory instruction on that head had been refused. In such circumstances he did not condone the error. Bailey v. Kansas City, 189 Mo. 503, 513, 87 S. W. 1182.

Defend...