Nevius v. Moore
| Decision Date | 08 June 1909 |
| Citation | 120 S.W. 43,221 Mo. 330 |
| Parties | HUGH C. NEVIUS, Appellant, v. GEORGE T. MOORE |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. A. F. Evans, Judge.
Affirmed.
J. C Rosenberger for appellant.
(1) The finding upon counts one and two should have been in favor of plaintiff. 1. Moore absolutely disregarded the terms of the letter transmitting the pledged notes, which letter constitutes the contract of pledge and which provides that the pledge of the notes should be only temporary and that the notes should be held only until foreclosure could be made title taken in Nevius' name and deed of trust given by him. For Moore to proceed to foreclose and take title in his own name and hold it as security was a gross violation of the pledge contract and presents a case for equitable relief similar to that given in Hagan v. Bank, 182 Mo. 319. Construction Co. v. Hayes, 191 Mo. 250; Richardson v. Ashby, 132 Mo. 238; Bank v Richardson, 156 Mo. 270. 2. His taking of the title to these lots in his own name, his failure to call upon Nevius for the foreclosure expenses, his failure to demand payment of Nevius' notes, his failure to ask Nevius to execute the deeds of trust, and his own statement that upon Nevius' failure to pay his notes on their maturity, without, however, any demand being made he treated the notes as his own, show conclusively that after Moore had got into his own possession these notes bearing his endorsements, the evidence of his liability, and had got the title to these lots tucked away in his own name, his ulterior object had been accomplished. 1 Pom., Eq. Jur. (3 Ed.), sec. 186. 3. No tender should be required of plaintiff as a condition to maintaining this action. In giving plaintiff the remedy he seeks in this case there can be no legitmate contention that plaintiff should have tendered to defendant the sum of $ 800 advanced to him at the time that the McClellan notes were pledged or that plaintiff has waived his rights upon the indorsements by pledging the notes with Moore. Moore was never a lawful pledgee of these notes. Nevius never supposed that he was borrowing money of Moore, his debtor, and never supposed he was pledging notes to him. Jones on Pledges, sec. 564; Mead v. Bunn, 32 N.Y. 275. 4. Even if Moore had not gotten the notes by fraud and had been the lawful pledgee thereof, there would have been no obligation on the part of Nevius to offer to redeem them by paying Moore the $ 800, for the further reason that the law does not require one to do a useless act. It being admitted by defendant that by his own misconduct he was unable to produce the notes alleged to have been pledged it would have been a useless and an idle ceremony for plaintiff to have offered to redeem them. Richardson v. Ashby, 132 Mo. 238. (2) Defendant should not be allowed to escape his liability as endorser of the notes by reason of the alleged failure, as it is claimed, of plaintiff to show due presentment, demand and notice of dishonor of the notes. 1. It was both alleged and proved that the notes when due were presented to and payment demanded of the makers and the proof showed by defendant's own admission that this had been done by defendant himself. 2. Even if there had been no such proof, the showing made of Moore's written, unconditional promises to pay the notes and recognition of his liability, dispenses with all further proof of demand, notice, etc. Mense v. Osborn, 5 Mo. 544; Dorsey v. Watson, 14 Mo. 59; Harness v. Daviess County, 46 Mo. 357; Falkner v. Falkner, 73 Mo. 327; Daniel, Neg. Inst., 1157.
R. E. Ball for respondent.
(1) In any event there could be no action here, except as on lost instruments. This, of course, is aside from whether defendant is really liable on these notes or on any of them. The undisputed proof discloses a case of a suit on lost instruments in which plaintiff has not complied with the statute. His pleadings and the proof do not correspond. He alleges that all of these notes are in existence, and that defendant has them. He does not plead as upon a lost instrument, or assert the loss of the notes, as the fact was, as a reason for their non-production. He fails utterly to show what he asserts. He makes no proffer of the bond without which, under the statute, he could have no judgment. R. S. 1899, secs. 642, 743. (2) Plaintiff is not the owner of the McClellan notes. As to these four notes, there is no possible doubt that plaintiff could not maintain any action on them either at law or in equity, against the defendant, or against anybody else. If he had not waited for eleven or twelve years before attempting to take any action on these notes, he could not, after pledging and reassigning them to defendant, whether they were for a loan from defendant personally or for a loan from a third party through plaintiff, as the fact was, maintain any suit even against the maker and primary debtor until he redeemed and took up the notes. He is not the owner or holder of the notes. He reassigned and pledged them as collateral for a debt which he has ignored, on which he has paid no interest, and which he has neither offered to pay nor shown any disposition to pay. Unless it is perfectly immaterial whether plaintiff is the owner and holder of the paper, he cannot maintain an action on it, and certainly cannot against the pledgee. (3) The notes sued on were all barred by the Statute of Limitations at the time the action was begun. (4) There is no evidence of any waiver on defendant's part, either of the Statute of Limitations, or of the failure to make demand, and protest on the notes, and notice of their dishonor. The law is quite clear that there could be no waiver, no matter if defendant's letter of February 10, 1898, is properly construed by counsel for plaintiff (which we deny), to the effect that that letter contained within the meaning of the law an unconditional promise to pay these notes. It must be true under the law, before any such effect could be given to the letter: (a) That it was an unconditional promise to pay these notes; and (b) That defendant knew when he made that promise that he was released. Long v. Dismer, 71 Mo. 453; Dyas v. Hanson, 14 Mo.App. 363; Thresher Co. v. Pierce, 74 Mo.App. 676. (5) The only possible point on which plaintiff could recover on any of the notes would be that by defendant's letter of February 10, 1898, defendant waived the Statute of Limitations, and waived demand and protest of the notes, and this alleged waiver plaintiff does not plead. Pier v. Heinrichoffen, 52 Mo. 333. (6) Defendant's letter of February 10, 1898, does not contain an unconditional promise to pay, and is improperly so construed by plaintiff's counsel. Borradile v. Lowe, 4 Taunt. 93; Kelly v. Brown, 5 Gray 110; Parks v. Smith, 155 Mass. 33; Thornton v. Wynn, 25 U.S. 187.
This appeal is from a judgment of the Jackson Circuit Court in favor of defendant.
On June 26, 1902, the appellant, Nevius, filed his petition against the respondent, Moore, in the circuit court of Jackson county, Missouri. Summons was issued and served on Moore the same day. An amended petition was filed on the 27th day of January, 1903. The amended petition consisted of seven counts, the two first being equitable and the last five being actions at law on promissory notes. The first count was based on four promissory notes executed by Eliza J. McClellan to George T. Moore, the respondent, on August 9, 1887, payable three years after date, secured by four separate deeds of trust on lots six, seven, eight and nine in block one in West Ridgeway, a subdivision of land in Jackson county, Missouri; the assignment of said notes to appellant, Nevius, by Moore, before their maturity; their reassignment to Moore as a pledge for loans, after maturity; the foreclosure of said deeds of trust by Moore while holding said notes as a pledge, and a general charge of fraud and misrepresentation by Moore for the purpose of relieving himself of his liability as indorser. It is alleged that at the maturity of said notes they were presented to the maker, demand of payment made, and notice of refusal of payment given to Moore as indorser. It was alleged in the original petition that interest was paid on said notes up to and including February 9, 1892, and in the amended petition that it was paid up to and including August 9, 1892; that in 1898 Moore admitted his liability on said notes as indorser and again promised to pay them; that Moore was agent of Nevius and as such took advantage of him and deceived him; that he borrowed money from Moore on the security of said notes as collateral temporarily until said deeds of trust could be foreclosed. Fraud and misrepresentation are charged against Moore in making the loan to Nevius and pledging the McClellan notes. It is charged that Moore represented that he was insolvent and that he would have to get the money from some other person, when as a matter of fact the money furnished was Moore's. It is charged that Moore converted the McClellan notes to his own use by having the deeds of trust foreclosed and title taken in his name, and that he was guilty of fraud in not giving Nevius notice of the time and place of sale and the fact that he had bought the lots at the sale. Appellant prays an accounting; that after giving Moore credit for the sums loaned him, he have judgment for the balance; that the title to the lots be decreed in appellant and that Moore be required to yield up the McClellan notes.
The second count of the amended petition is based on a note dated January 15, 1889, given by Joseph J. Baughman to respondent George T. Moore, payable three years after date, secured by a deed of trust on lots nine, ten and eleven, block fifty-two, in...
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