Morrison v. Garth

• Decision Date: 31 October 1883
• Citation: 78 Mo. 434
• Parties: MORRISON et al., Plaintiffs in Error, v. GARTH.
• Court: Missouri Supreme Court

78 Mo. 434

MORRISON et al., Plaintiffs in Error,

v.GARTH.

Supreme Court of Missouri.

October Term, 1883.

Error to Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Karnes & Ess for plaintiffs in error.

F. Titus for defendants in error.

WINSLOW, C.

This action is based on two promissory notes, both of the same tenor and date, one due in eight and the other in ten months after date. The petition is an ordinary declaration on indorsed and protested negotiable promissory notes against the makers and indorsers, and seems to be sufficient. The answer of S. D. Garth, who is sued as indorser, is a general denial. The answer of H. C. Garth, who, with Sanford Congdon, is sued as maker, under the firm name of Congdon & Garth, after a general denial, sets up an alteration of the notes, after delivery, without the knowledge or consent of the makers. There was a general reply to this defense. Congdon filed no answer. No demurrer was interposed to the petition, but on the trial defendants objected to the introduction of evidence under it, because it improperly joined two separate causes of action in one count; because defendants were improperly joined as makers and indorsers; because the notes sued on were not negotiable promissory notes, and because it failed to state facts sufficient to constitute a cause of action; all of which were overruled by the court.

The notes, certificates of protest and the deposition of Joseph C. Alexander, one of the plaintiffs, explaining the circumstances under which the notes were executed and the alleged alterations made, and proving how notice of protest was sent to the indorser, were all read in evidence against the objections of defendants. At the conclusion of plaintiffs' evidence, defendants interposed a demurrer to the evidence, which the court sustained; the plaintiffs took a non-suit, and having duly perfected their record bring the case here for review by writ of error.

The protests are in the common form in use by notaries in this State, signed by the protesting notary and sworn to before another. They tend to show a timely presentation of the notes, as they became due, at the banking house of J. Q. Watkins & Co., a demand and refusal to pay, a formal protest and notice to the indorser. The notice for S. D. Garth, the indorser, was sent under cover to the plaintiffs, at their usual post-office address in New York; and the deposition of Joseph C. Alexander, one of the plaintiffs, shows that it was duly received, in each instance, and mailed to Garth, at his usual post-office address in Missouri. Some technical objections are raised, but not strongly urged, to those protests, but perceiving no material defects in them, or the notice, we will omit any further statement of this branch of the case.

All the other questions in the case arise on the face of the notes, which are exact copies, except as to the time of the payment. The first note due is in this form, as it appears in the record:

“$376.00

KANSAS CITY, Mo., June 15th, 1875.

Eight months after date we promise to pay to the order of S. D. Garth, $376, at the banking house of J. Q. Watkins & Co., value received, with interest at the rate of seven per cent per annum from date, with exchange on New York. Due 13--18 February.

CONGDON & GARTH.

Indorsed: S. D. GARTH.

Pay to the order of J. Q. Watkins, cashier.

MORRISON, HERRIMAN & Co.”

Joseph C. Alexander, the only witness introduced, testified, by deposition, in substance as follows, on the subject of the execution, delivery and...