Oexner v. Loehr

• Decision Date: 26 April 1904
• Citation: 106 Mo. App. 412,80 S.W. 690
• Parties: OEXNER v. LOEHR et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

80 S.W. 690

106 Mo. App. 412

OEXNER v. LOEHR et al.^*

St. Louis Court of Appeals. Missouri.

April 26, 1904.

BILLS AND NOTES—ANOMALOUS INDORSER— LIABILITY OF INDORSER—SPECIAL AGREEMENT—EVIDENCE—PRIMA FACIE CASE.

1. In the absence of evidence that one who signed a note on the back before delivery, being neither maker nor payee, signed under an agreement between herself and the payee that she should be regarded as an indorser, such signature rendered her liable as a joint maker.

2. Where the note sued on was taken before delivery to the payee to D. by one of the makers, who asked D. to indorse the note, and told her that she would be notified by the payee if it was not paid at the proper time, and one of the makers testified that when the note was delivered to plaintiff he told him the conditions on which D. signed it, namely, that it must be paid when due, and if not plaintiff would notify her, such facts were sufficient to sustain a finding that D. signed the note as an indorser, and not as joint maker.

3. Where a note was signed on the back by one not the payee, and the note is introduced by plaintiff in an action thereon, and plaintiff then rests, it is a prima facie showing that defendant signed as a joint maker.

Appeal from St. Louis Circuit Court; J. R. Kinealy, Judge.

Action by Michael Oexner against Fred Loehr, Jr., and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

W. H. Clopton, for appellant. W. H. Cocke, for respondents.

GOODE, J.

Action on two promissory notes, one for $1,000, dated January 2, 1900, the other for $500, dated March 11, 1900, both due one year after their respective dates. Plaintiff was the payee of the notes, and they were signed on their faces by Fred Loehr, Jr., and Wendlin Oexner, and across their backs by Mrs. Emily Donk. The petition was in two counts of the usual form. The answer stated that the defendant Emily Donk signed the notes on the back as indorser, and that plaintiff failed to notify her of the default of the makers, or to take any step required by law to make her liable as indorser. A replication put that defense in issue.

The question is as to the capacity in which Mrs. Donk signed the notes. She signed them both before delivery to the plaintiff, and, as she was neither payee nor indorsee, the presumption is she did so as maker, which presumption could be disproved by showing an agreement was made between her and the plaintiff that she was to be regarded as indorser, and entitled to the rights of one who occupies that status on a promissory note. Otto v. Bent, 48 Mo. 26. Neither of the notes was paid at maturity, and, as demand for payment was not made or notice of dishonor given to the defendant, she stands exonerated from liability if she was an indorser and not a joint maker or surety. The law concerning what must be proven by a party who is prima facie a maker of a promissory note (of which he was neither payee nor indorsee) from having written his name on the back of it before delivery, to clothe himself with the character of an indorser, has been frequently reiterated by the appellate courts of this state. He must show an agreement that he was to be liable as indorser instead of as maker; a "special contract" to that effect, some of the opinions say; others, an "express understanding." Otto v. Bent, supra; Boyer v. Boogher, 11 Mo. App. 130; Malting Co. v. Miller, 38 Mo. App. 251. We understand those decisions to mean simply that a positive agreement must be shown to relieve such a signer of the character of maker, and that no agreement of the sort will be implied. The use of the word "indorser" or "indorsement," in a conversation between the parties anterior to the signing of the instrument, is not decisive of the obligation of the party who signed across the back, for both words are used popularly to designate a maker who subscribes his name on the back of a note, as well as an indorser in the technical sense of the term. Rossi v. Schawacker, 66 Mo. App. 67.

Plaintiff's counsel insists a peremptory instruction should have been given to the jury to return a verdict for his client on both notes. His position is that there was no evidence to prove an agreement between plaintiff and Mrs. Donk that she was to be held as an indorser merely. Probably this position is well taken as to the second note, for several perusals of the record have failed to disclose any substantial testimony to prove an agreement regarding it. It was delivered to the plaintiff by his brother, Wendlin Oexner, with defendant's name on it, and without any statement to plaintiff that she contracted as indorser. If there was an understanding of that kind between her and the principals on the note...