Nance v. Hayward

• Decision Date: 02 November 1914
• Citation: 170 S.W. 429,183 Mo.App. 217
• Parties: WEBSTER NANCE, Respondent, v. J. P. HAYWARD and MRS. J. P. HAYWARD (Husband and Wife), Appellants
• Court: Kansas Court of Appeals

170 S.W. 429

183 Mo.App. 217

WEBSTER NANCE, Respondent, v. J. P. HAYWARD and MRS. J. P. HAYWARD (Husband and Wife), Appellants

Court of Appeals of Missouri, Kansas City

November 2, 1914

Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.

REVERSED.

Judgment reversed.

Gilbert Lamb for appellant.

The note sued on and offered in evidence being payable to a person other than plaintiff and plaintiff having alleged in his petition that the original payee, John N. Taylor indorsed the note across the back thereof, the burden was upon plaintiff to prove the indorsement of Taylor to plaintiff by evidence aliunde. Having failed in this he failed to prove the allegations of his petition, failed to establish title to the note in himself and the demurrer should have been sustained. Reinhard et al. v. Coal Co., 25 Mo.App 350; National Bank of Commerce v. Pennington, 42 Mo.App. 355; Mayer v. Old, 51 Mo.App. 216; Worrell v. Roberts, 58 Mo.App. 197; Hugumin & Co. v. Hinds et al., 97 Mo.App. 346; Dunlap v Kelly, 105 Mo.App. 1; Discount Co. v. Becker, 138 Mo.App. 54.

Roy McKittrick for respondent.

(1) Because the defendant failed to deny execution of the note under oath, it stood confessed. Smith Mid. P. Co. v Rembaugh, 21 Mo.App. 390; McGill v. Wallace, 22 Mo.App. 683. (2) The following allegation in the petition that thereupon on the 25th day of July, 1913, the said John N. Taylor delivered the same to plaintiff, for value, and the said John N. Taylor indorsed the same in writing across the back thereof, is an allegation of a blank indorsement and not a special one, and made the instrument payable to bearer and negotiable by delivery. Sec. 10004, R. S. 1909. (3) The note indorsed in blank by the payee, John N. Taylor and delivered, for value, to the plaintiff, undoubtedly imparts title in the plaintiff. Hawes v. Mulholland, 78 Mo.App. 496; Barnard State Bank v. Fesler, 89 Mo.App. 225. (4) Even though the note had been transferred to this plaintiff without indorsement the transferee took such title as the transferrer had therein. Sec. 10019, R. S. 1909.

OPINION

JOHNSON, J.

This is an action on a negotiable promissory note executed and delivered by defendants to John N. Taylor. The petition alleges that before maturity the payee delivered the note "to plaintiff for value received and the said John N. Taylor indorsed the same in writing across the back thereof." The answer is merely a general denial. A jury was waived and at the trial plaintiff introduced evidence tending to show that before maturity the payee sold and delivered the note to plaintiff for value but offered no evidence to prove indorsement by the payee. The court overruled defendants' demurrer to the evidence and rendered judgment for plaintiff. Defendants appealed.

The answer confessed the execution of the note (Sec. 1985, R. S. 1909; Smith v. Rembaugh, 21 Mo.App. 390; McGill v. Wallace, 22 Mo.App. 675) but not its alleged indorsement by the payee to plaintiff, the holder, and the general denial was sufficient to put in issue plaintiff's title and the genuineness of the pleaded indorsement. [Worrell v. Roberts, 58 Mo.App. 197, and cases cited.]

A blank indorsement was pleaded, since the name of the indorsee was not specified (Sec. 10004, R. S. 1909) and the rule is well settled that the holder of an unmatured negotiable promissory note indorsed in blank is prima facie the owner thereof ( Cloud v. News Co., 23 Mo.App. 319; Bank v. Stanley, 46 Mo.App. 440; Hawes v. Mulholland, 78 Mo.App. 493; Allen v. Harris, 79 Mo.App. 490), but to establish such prima-facie case it devolves on the holder to prove the indorsement by evidence aliunde the indorsement. [Reinhard v. Coal Co., 25 Mo.App. 350; Bank v. Pennington, 42 Mo.App. 355; Mayer v. Old, 51 Mo.App. 214; Worrell v. Roberts, supra; Hugumin v. Hinds, 97 Mo.App. 346, 71 S.W. 479; Dunlap v. Kelly, 105 Mo.App. 1, 78 S.W. 664; Discount Cp. v. Becker, 138 Mo.App. 54, 119 S.W. 981.]

Plaintiff pleaded title in himself by indorsement and delivery and thereby assumed the burden of proving the existence of the constituent elements of such title (Dunlap v. Kelly, supra). He did not discharge his burden by merely proving that the payee had delivered possession of the note to him for value. While it is true that the negotiable instruments act (Sec....