Powell v. Price

• Decision Date: 07 March 1905
• Citation: 85 S.W. 924,111 Mo.App. 320
• Parties: POWELL, Appellant, v. PRICE, Respondent
• Court: Missouri Court of Appeals

85 S.W. 924

111 Mo.App. 320

POWELL, Appellant, v. PRICE, Respondent

Court of Appeals of Missouri, St. Louis

March 7, 1905

Appeal from Madison Circuit Court.--Hon. Robt. A. Anthony, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.

Plaintiff sued defendant before a justice of the peace on the following promissory note:

"$ 90,00. Post Office, Fredericktown, Mo., 2-26, 1902.

"For value received I promise to pay to the order of W. W. Kimbal Co. (incorporated) Chicago, Ill., with exchange, ninety dollars, payable at Madison County Bank, Fredericktown, Mo as follows: $ 10 cash, balance $ 80 in one year from date with interest at the rate of six per cent per annum until paid. The drawers and endorsers severally waive presentment for payment, protest and notice or non-payment of this note.

"JAMES PRICE."

On the back of this note was written the following assignment:

"Pay to J. E. B. Powell,

"W W. KIMBAL COMPANY."

Plaintiff lost in the justice's court and appealed to the circuit court where the verdict was again against him, and he appealed to this court. The defense was a plea of non est factum under oath.

Plaintiff testified that he sold defendant an organ and, in part payment, took the note sued on and a chattel mortgage on the organ to secure the same, both of which he stated the defendant signed and delivered to him, after reading them and that the note was assigned to him for value by the Kimbal Company.

John Tawfall testified that he was present at defendant's house when the trade for the organ was made and witnessed the transaction; that plaintiff bought the organ and he saw him sign the note in suit.

Mrs Tawfall testified that she heard very little about the purchase of the organ, the sale having been almost completed before she arrived at defendant's residence that morning; what she heard being mostly about signing the note and mortgage; that she saw Mr. Price sign the note and discovered from the conversation that he had purchased an organ; that she recognized the signature to the note sued upon as that of Mr. Price, and that he said to her while they were all upstairs looking at the organ; "You haven't got ahead of me with your organ. I didn't intend to buy any organ now; I haven't got the furniture to match, and ain't fixed up to buy an organ, but I can get the organ and can get the furniture afterwards to match the organ."

Defendant testified that he signed the note but when he signed it he thought it was a receipt for the organ; that plaintiff said: "O well then, now, just sign this paper, this organ receipt, and if you don't want the organ, I want to leave it here a couple of weeks among the people to see what kind of stuff I am handling. Well, I will just leave you sign this receipt, if you don't want the organ, and I will come and get the organ and it won't cause you any trouble." Defendant further testified that he did not know he had signed a chattel mortgage at the time he signed the note, could not remember signing his name but once, but admitted his signature to the chattel mortgage was genuine. Defendant stated that he did not intend to sign a note and a chattel mortgage too; that he could read writing a little but not very well.

On cross-examination, defendant admitted that he promised to leave five dollars at the Security Bank for plaintiff and that he went to the bank to leave it for him but when he got there he had forgotten plaintiff's name. The following evidence is also found in defendant's cross-examination:

"Q. Because he had sold you an organ you promised to leave $ 5 there in payment according to the terms of that note? A. He kept on talking and going on and I was about half sick that morning and I kept insisting that I didn't want the organ, and I done that to get rid of...