People's Bank of New Orleans v. Scalzo

• Decision Date: 05 March 1895
• Parties: People's Bank of New Orleans v. Scalzo, Executrix, et al., Appellants
• Court: Missouri Supreme Court

29 S.W. 1032

127 Mo. 164

People's Bank of New Orleans v. Scalzo, Executrix, et al., Appellants

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

Dickson & Smith for appellants.

(1) The court below erred in refusing to give instruction, in the nature of a demurrer to the evidence, asked by appellants at the close of the case. Boykin v. O'Hara, 6 La Ann. 115; Brown v. Frantrum, 6 La. Ann. 39; Bank v. Hart, 32 La. Ann. 22; Reynolds v. Rawley, 4 La. Ann. 396; Bank v. Schamberg, 32 Mo. 228; Daniel on Neg. Inst. [4 Ed.], sec. 283; sec. 2997, La. Civil Code 1891; Chaffee v. Stubbs, 37 La. Ann. 656; Randolph on Com. Paper, secs. 386, 388, 399, 421. (2) The court below erred in the admission of the notes sued on, as proper authority in law for the indorsement had not been shown. Civil Code La. 1891, sec. 2997; Boykin v. O'Hara, 6 La. Ann. 115; Brown v. Frantrum, 6 La. Ann. 39; Bank v. Schaumberg, 32 Mo. 228; Bank v. Gay, 63 Mo. 33; Daniel on Neg. Inst. [4 Ed.], sec. 283; Tiedeman on Com. Paper, sec. 82; Randolph on Com. Paper, sec. 357. (3) The court below erred in admitting in evidence the certificates of notarial protest. Faulkner v. Faulkner, 73 Mo. 327; R. S. 1889, sec. 4880. (4) The court below erred in finding that proper presentment, demand, and protest were made, and notice thereof given Vincenzo Scalzo. Ins. Co. v. Wilson, 2 S.E. 888; Daniel on Neg. Inst., secs. 962, 998, 1050, 1116; Story on Prom. Notes [7 Ed.], secs. 309, 345; Clay v. Oakley, 17 Mart. (La.) 137; Bird v. Doyal, 20 La. Ann. 541; Montillet v. Duncan, 11 Mart. (La.) 534; Bank v. Ellery, 4 Mart. (N. S.) 87. (5) The court below erred in its finding that Zammit had "express and special" power, within the meaning of article 2997 of the Louisiana Civil Code, to make the indorsement of the notes sued on, and that such indorsement is sufficient to hold the estate of Vincenzo Scalzo. Same authorities as under point 2.

Campbell & Ryan for respondent.

(1) The power of attorney from V. Scalzo & Company to Philip Zammit was amply sufficient, both under the general law respecting such instruments and under the civil code of Louisiana, to authorize the indorsement of the notes in suit. Bank v. Morgan, 2 La. Ann. 418; Bank v. Hagan, 2 La. Ann. 999; Bank v. Hernandez, 25 La. Ann. 43; State v. Tax Collector, 40 La. Ann. 232; State ex rel. v. Gates, 67 Mo. 139; Edwards v. Thomas, 66 Mo. 468; Bank v. Studley, 1 Mo.App. 260. (2) The intention of the parties as to the extent of authority meant to be given will influence the court in construing the instrument. Mathews v. Danahy, 26 Mo.App. 660; Mechem on Agency, sec. 295. (3) Effect must be given to every word and clause, etc., and if the instrument is open to two constructions, the one that upholds the contract should govern. Mechem, secs. 303, 404. (4) While an authority to give a bill or note may not include accommodation paper, yet if such be given by the agent with the principal's consent, and to take up other similar paper upon which he was liable, he will be bound. 1 Randolph on Com. Paper, sec. 361; Bank v. Studler, 1 Mo.App. 260. (5) The verbal direction given by Scalzo to Zammit in New Orleans before the maturity of the $ 15,000 note to attend to such renewal as might be necessary, and indorse on his behalf, was an express and special authority to indorse the notes in suit within the meaning of article 2997 of the civil code of Louisiana. Cases cited supra. (6) The telegram sent by Scalzo to Zammit: "Do the best you can," in response to Zammit's telegram that the note would be due next day, and inquiring what he should do, constituted, under the civil code of Louisiana, express and special authority to Zammit to indorse these notes. Cases supra. (7) Even had there been no previous authority to Zammit to indorse these notes the subsequent circumstances would constitute a ratification of Zammit's act in so doing. Mechem on Agency, secs. 153, 164, 178, 705; Johnson v. Carrere, 45 La. Ann. 847; Bank v. Gay, 63 Mo. 33; Peck v. Ritchey, 66 Mo. 114; Ferris v. Thaw, 72 Mo. 446. (8) The fact that the first or $ 15,000 note was indorsed by Vincenzo Scalzo as V. Scalzo, Son & Company (of which firm he was a member), and that the two notes in suit were indorsed by Zammit (by authority of Scalzo), of which firm V. Scalzo was also a member, makes all the notes the obligation of V. Scalzo, upon which he could be held personally liable in solido, and the two notes in suit having been so indorsed by Vincenzo Scalzo in renewal of the balance due upon the accommodation indorsement of the $ 15,000 note, and the bank being the holder in good faith for value, the estate of Vincenzo Scalzo is liable for the amount due thereon. Newman v. Goza, 2 La. Ann. 642; Knox v. Dickson's Heirs, 4 La. Ann. 466; Mathews v. Rutherford, 7 La. Ann. 224; Braux v. LeBlanc, 10 La. Ann. 97; Gasquet v. Oakey, 15 La. Ann. 537; Jones v. Byrne, 16 La. Ann. 202; Trabue v. Short, 18 La. Ann. 257. (9) There was abundant evidence upon which the court was justified in its finding that the notices of protest were received by both V. Scalzo and his agent, Zammit. Daniels on Negotiable Instruments [4 Ed.], secs. 1003, 1023-1029a; Edwards on Bills, sec. 812; Tollian v. Dupre, 11 Robinson, 454; Carmena v. Bank, 1 La. Ann. 369; Dedoux v. Morgan, 3 La. Ann. 344; Bank v. Chambers, 14 Mo.App. 152. (10) The recognition of liability by Scalzo several months after the maturity of the notes and his promise to Landry, president of plaintiff bank, that he would make the notes good, would have fixed his liability, had there been no protest. Hyde v. Stone, 20 Howard, 170; Yaeyer v. Farwell, 13 Wall. 7; Hazard v. White, 26 Ark. 280; Carter v. Sprague, 51 Cal. 239; Fall v. Deal, 14 S.C. 247; Levy v. Peters, 9 S. & R. 125; Bank v. Lyman, 20 Vert. 666; Oglesby v. Steamboat, 10 La. Ann. 117. (11) The objection to the petition is made here for the first time and is not well taken. An objection to the petition must go to the entire sufficiency of the petition to state a cause of action. It can not avail when it states a cause of action which is indefinite or imperfect in some of its averments. McDermott v. Claas, 104 Mo. 14. (12) Such objection for imperfectly stating a cause of action must be taken by demurrer or motion. Bank v. Leyser, 116 Mo. 61; Lynch v. Railroad, 111 Mo. 604; Bliss on Code Pl., sec. 438; R. S. 1889, sec. 2100; sec. 2113, clauses 8 and 9. (13) Appellants' objections to the protests are futile, not only because not well taken, but because they failed to make their objections specific in the trial court when the instruments were offered in evidence. The only objections made were that they were "incompetent, irrelevant and immaterial." The practice in this respect is well settled. Jamison v. Baggot, 106 Mo. 240; Dunkman v. Railroad, 95 Mo. 232; Block v. Estes, 92 Mo. 318; Keim v. Railroad, 90 Mo. 214.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

This is an action against the personal representatives of Vincenzo Scalzo, deceased, to recover the principal and interest of two negotiable promissory notes, together with damages and costs of protest.

The two exhibits are as follows:

"$ 5,000.

New Orleans, July 6, 1891.

"Sixty days after date we promise to pay to the order of ourselves, five

thousand 00/100 dollars, at our office, No. 144 Decatur street; value

received.

"Flli. Cusimano.

Per Chas. Adoue.

"Due 4 -- 7, September, '91.

"(Indorsed)

Flli. Cusimano,

"Pp. Chas. Adoue.

"V. Scalzo & Co.

"Pp. Ph. Zammit."

"5,000.

New Orleans, July 6, 1891.

"Seventy-five days after date we promise to pay to the order of ourselves,

five thousand 00/100 dollars, at our office, No. 144 Decatur street; value

received.

"Flli. Cusimano,

"Per pro Chas. Adoue.

"Due 19 -- 22, Sept., '91.

"(Indorsed)

Flli. Cusimano,

"Per Chas. Adoue.

"V. Scalzo & Co.

"Pp. Ph. Zammit."

The first count of the petition is in these words:

"Plaintiff states that it is now, and, at the dates hereinafter mentioned, was, a corporation organized under the laws of the state of Louisiana, and domiciled and doing business in the city of New Orleans, in said state.

"That on and prior to the twenty-seventh day of March, 1890, the defendants, Felix Scalzo, Sylvester Rocco Fiorita and P. V. Rocco and Vincenzo Scalzo were commercial partners, doing business under the firm name of V. Scalzo & Company. That on the eighth day of January, 1892, Vincenzo Scalzo, one of the aforesaid partners in said firm, departed this life, and left a will, appointing the defendants, Sarah Scalzo and Sylvester Rocco Fiorita, executors of his said last will. That said will was probated, in the city of St Louis, on the fifth day of January, 1892; that on the sixteenth day of January, 1892, letters testamentary were issued by the probate court of the city of St. Louis to the defendants, Sarah Scalzo and Sylvester Rocco Fiorita, as executrix and executor respectively of the last will of Vincenzo Scalzo, and they are now acting in the capacity of the executors of the estate of said Vincenzo Scalzo.

"And plaintiff states that said defendants are justly and truly indebted to it in solido, in the full sum of fifty-one hundred and sixty-two and 10-100 dollars for this, to wit:

"On the sixth day of July, 1891, Flli. Cusimano, a commercial firm in the city of New Orleans, and carrying on business under said firm name, otherwise known as Cusimano Brothers, made their certain negotiable promissory note in writing, herewith filed and made part hereof, whereby, sixty days after date, they promised to pay to the order of themselves five thousand dollars ($ 5,000), at their office, No. 144 Decatur street; value received.

"That...