Otto v. Bent

• Decision Date: 31 March 1871
• Citation: 48 Mo. 23
• Parties: AUGUST OTTO, Respondent, v. HERMAN BENT, IMPLEADED WITH G. A. LEISSE, Appellant.
• Court: Missouri Supreme Court

48 Mo. 23

AUGUST OTTO, Respondent,

v.HERMAN BENT, IMPLEADED WITH G. A. LEISSE, Appellant.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Lubke & Player, for appellant.

The first instruction given on motion of respondent is palpably erroneous. It asserts that unless the jury found that “at the time of the signing of said note, and before its delivery to the plaintiff, an agreement or understanding was had between him and said Bent and Leisse that said Bent and Leisse should be held and considered as indorsers,” then the jury could not find that the appellant was an indorser of the note. Bearing in mind that it was shown by Bent that he was an indorser of the note before Frank Leisse delivered it to Otto, it might be claimed that Otto, when he gave value for the note to Frank Leisse, became an innocent holder of the note and could not be bound by any understanding concerning the character of Bent's indorsement or signature on the note which might have existed between Frank Leisse and Bent, unless he (Otto) had received notice of it before he purchased the note. Therefore the appellant introduced testimony tending to show that Otto did know of the character of the signature before he purchased. And having introduced that proof, he asked, and the court gave, the first instruction given for defendant. But when that instruction was read, with the one given for the respondent, the jury were instructed to find that, “at the time of the signing of said note”-- i. e., at the interview between Bent and Frank Leisse--an agreement was had between Bent and Otto to the effect that Bent was to be held and considered as an indorser. This fact the jury could not find without violating their oaths; hence their verdict. These two instructions are inconsistent, i. e., if read side by side they present theories of law utterly inconsistent with each other when applied to the case. Furthermore, they actually misled the jury. (Buel v. St. Louis Transfer Co., 45 Mo. 564.)

F. & L. Gottschalk, for respondent.

I. “A person who writes his name on the back of a note, he not being payee, is prima facie a maker, but may be permitted to show that he did not sign as maker, but as indorser, and that such was the understanding of the parties at the time.” (Powell v. Thomas, 7 Mo. 440; Lewis v. Harvey, 18 Mo. 74, 80; Perry v. Barrett, 18 Mo. 140; Baker v. Block, 30 Mo. 225.)

II. Defendant set up in his answer that “they,” meaning himself and co-defendant, G. A. Leisse, “did so write their names on the back of said note with the understanding between them and the plaintiff and said Frank Leisse that they were to be taken and considered as indorsers thereof.” Defendant had to prove such understanding, yet he swears he never saw plaintiff about the note before its delivery. There being no such understanding, the law declares in what character he is to be held; and that he signed as surety does not release him. (Baker v. Block, supra;Lewis v. Harvey, 18 Mo. 76; 5 Mass. 358; 6 Mass. 519; 7 Mass. 518; Buckner v. Liebig, 38 Mo. 188; Schmidt v. Schmaelter, 45 Mo. 188; Jones v. Louderman, 39 Mo. 287.)

III. The instructions were correct.

BLISS, Judge, delivered the opinion of the court.

The defendant, with Frank Leisse and G. A. Leisse, was sued as maker of a promissory note for $1,000, payable to the order of plaintiff; and defendant and said G. A. Leisse were described as sureties for said Frank. The defendant and G. A. Leisse, answering, admit that they put their names upon the back of the note, but allege that it was done with the express understanding, between them and plaintiff and said Frank, that they were to be held as indorsers, and not as makers, and that plaintiff failed to make demand and give notice of non-payment as required by law. Upon this issue the case was tried, and the plaintiff recovered judgment, from which defendant Bent appeals.

Upon the trial the jury were instructed, at the instance of defendants' counsel, that if they found that defendants, Bent and G. A. Leisse, put their names upon the note with the understanding that they were to be treated as indorsers, and plaintiff knew this before he received it, then they must find a verdict in favor of said defendants. But the court also, at plaintiff's instance, gave the following instruction: “Before the jury can find that the defendants, Herman Bent and G. A. Leiss or either of them, were indorsers of the note...