Quackenboss v. Harbaugh
| Decision Date | 06 April 1923 |
| Parties | F. WILLIAM QUACKENBOSS, Administrator With Will Annexed of Estate of ANDREW DOERR, v. SIMON J. HARBAUGH, Executor of Estate of DETLEF VON DER LIPPE, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.
Affirmed.
Dawson & Garvin for appellant.
(1) Plaintiff's failure to make timely reply to defendant's affirmative defenses and counterclaims entitled defendant to judgment pro confesso and inquiry. R S. 1909, sec. 1809; Eunis v. Hogan, 47 Mo. 513; Bird v. Rowell, 180 Mo.App. 421. (2) In case No 92336 the amended petition is insufficient to admit evidence. (a) Lacking averments or proof respecting law of Illinois where notes were signed and made payable. Davis v. McColl, 166 S.W. 1113, 184 S.W. 920. (b) Petition shows notes were signed for accommodation of Joan D'Arc Manufacturing & Supply Co. and fails to allege or prove any presentment at maturity to or demand for payment of said company or protest for non-payment. Eaves v. Keeton, 196 Mo.App. 424; Bennett v. Kestler, 163 N.Y.S. 555. (c) No facts stated showing liability of accommodation parties to each other on notes. Shea v. Vahey, 215 Mass. 80; McNeilly v. Patchin, 23 Mo. 40; Dunn v. Wade, 23 Mo. 207; McCune v. Belt, 45 Mo. 174; Stillwell v. How, 46 Mo. 589; Hildegast v. Stephensen, 75 Mo. 118; In re McCord, 174 F. 72; R. S. 1909, secs. 10000, 10161, 10089; Williams v. Gerber, 75 Mo.App. 18; Burrus v. Cook, 215 Mo. 496, 501. (3) In the other six cases the amended petitions are insufficient to admit evidence. (a) It appears that the alleged signature of defendant's testator is in blank on the backs of the notes sued on, and parol evidence that he signed as co-surety with and was therefore liable for contribution to plaintiff's testator is not admissible. R. S. 1909, sec. 10033; Overland Auto Co. v. Winters, 180 S.W. 561, 210 S.W. 1; In re McCord, 174 F. 72; Eaves v. Keeton, 196 Mo.App. 428; Johnson v. Ramsey, 43 N. J. L. 279, 285. (b) No other agreement than that the alleged endorsers agreed to became co-sureties is alleged. (4) In three of these six cases no protest or waiver of protest is alleged or proved. This also is essential in any such case. McDonald v. Luckenbach, 170 F. 434; Eaves v. Keeton, 196 Mo.App. 424; Bennett v. Kestler, 163 N.Y.S. 555; Overland Auto Co. v. Winters, 210 S.W. 1. The court erred in refusing defendant's request to so declare the law. (5) Appellant's demurrers to the evidence at close of plaintiff's case and of the whole case should have been sustained. (a) Alleged accommodation indorsers in blank of negotiable promissory notes executed, if at all, in Missouri after the passage of the Negotiable Instruments Act, are sued on said notes as cosureties for contribution by another alleged accommodation indorser in blank, and no competent, relevant or material evidence tending to show such liability was offered. Secs. 63, 10033, R. S. 1909; Walker v. Dunham, 135 Mo.App. 396; Overland Auto Co. v. Winters, 277 Mo. 425; Johnson v. Ramsey, 43 N. J. L. 279; In re McCord, 174 F. 72; Shea v. Vahey, 215 Mass. 80; Eaves v. Keeton, 196 Mo.App. 424; Porter v. Huie, 126 S.W. 1069. (b) Case No. 92336 is an Illinois note, and no Illinois law was offered in evidence. Davis v. McColl, 166 S.W. 1113; Same case, 184 S.W. 920. (c) All signers signed for the accommodation of the Joan D'Arc Manufacturing & Supply Co. No evidence was offered tending to show any agreement between accommodation parties to be jointly liable or liable for contribution. The rule of law is that liability among accommodation parties to negotiable notes is successive and several and not joint. Druhe v. Christy, 10 Mo.App. 566; McNeilly v. Patchin, 23 Mo. 40; Dunn v. Wade, 23 Mo. 207; McEntire v. Doyle, 15 Mo.App. 583; McCune v. Belt, 45 Mo. 174; Stillwell v. How, 46 Mo. 589; Hildegart v. Stephensen, 75 Mo. 118. (d) The Negotiable Instrument Act makes accommodation makers primarily liable and absolutely required to pay; that all other parties are only secondarily liable; that a negotiable instrument is discharged by payment by or on behalf of a principal debtor. R. S. 1909, secs. 10038, 10033, 10000, 10089.
Rassieur, Kammerer & Rassieur for respondent.
(1) Under the Negotiable Instrument Act, evidence is admissible to show that each indorser has agreed to be liable for the principal debt alone, and therefore that all indorsers are co-sureties with each other and liable to contribution. As respects one another, indorsers are liable prima-facie in the order in which they indorse, but evidence is admissible to show that as between or among themselves they have agreed otherwise, and it is not necessary that there shall be proof of an actual formal contract. Trego v. Estate of Cunningham, 267 Ill. 368; Morgan v. Thompson, 72 N. J. L. 244; Wilson v. Hendee, 74 N. J. L. 640; George v. Bacon, 123 N.Y.S. 103; Harris v. Jones, 136 N.W. 1080; In re McCord, 174 F. 72; 1 Daniel Neg. Inst. (6 Ed.) sec. 704, p. 788. (2) The parties to the paper sued on were stockholders of the Joan D'Arc Manufacturing Company, and they therefore occupied the dual position of "accommodation parties" and the "accommodated parties." The notes were made to raise money for the corporation whose assets and property belonged to them, and as the "accommodated parties" they were not entitled to notice. Trego v. Estate of Cunningham, 267 Ill. 368; Secs. 10050, 10085, R. S. 1909; Mercantile Trust Co. v. Donk, 178 S.W. 116. (3) In an action on a contract made in Illinois and subject to its laws, the laws of the State of Illinois must be pleaded and proved, and in the absence thereof, the action will be determined according to the common law. The court takes judicial notice that the common law prevailed in Illinois, but not of the existence of its statutes, and in the absence of proof, its statutes will not be considered. Morton v. Supreme Council of Royal League, 100 Mo.App. 88; Stakebake v. Union Pac. Railroad, 185 S.W. 1166. (4) The doctrine of contribution is the result of general equity, based on the ground of equality of burden and benefit, is equally applicable between principals as between sureties, and has been adopted as a rule of common law in this State. Van Petten v. Richardson, 68 Mo. 379; Jeffries v. Ferguson, 87 Mo. 244; Leeper v. Paschal, 70 Mo. 124; Dysart v. Crow, 170 Mo. 275; Gregg v. Carroll, 201 Mo.App. 476; Skrainka v. Rohan, 18 Mo.App. 340. (5) One accommodation indorser who has discharged the common liability can recover from each of his co-accommodation indorsers his share of the obligation, but in determining the proportion which each indorser should contribute, regard will be had to only the solvent indorsers and to those within the jurisdiction of the court called upon to enforce contribution. Van Petten v. Richardson, 68 Mo. 379; Dodd v. Winn, 27 Mo. 501. (6) The right to compel contribution from the estate of a deceased indorser on the note of a corporation is not affected by the fact that the other indorsers executed notes as principal makers, with which they took up the notes of the corporation upon which all of the parties were indorsers, which new notes were subsequently paid by the surviving solvent indorsers. Trego v. Estate of Cunningham, 267 Ill. 368. (7) An "accommodation party," defined by Sec. 10,000, R. S. 1909, as one who has signed the instrument as a maker, drawer, acceptor, or indorser, without receiving value therefor and for the purpose of lending his name to some other person, and who by that action is made liable to a holder for value, notwithstanding the holder, at the time of taking the instrument, knew he was only an accommodation party, is primarily liable to the holder, under Sec. 10,161, which provides that a person primarily liable on an instrument is one who, by the terms thereof, is absolutely required to pay the same. Night & Day Bank v. Rosenbaum, 191 Mo.App. 559; Bank of Senath v. Douglass, 178 Mo.App. 664; Vanderford v. Farmers' Bank, 105 Mo.App. 164; Union Trust Co. v. McGinty, 98 N. E. (Mass.) 679; Wolstenholme v. Smith, 34 Utah 300; Lane v. Hyder, 163 Mo.App. 688; Golden City Banking Co. v. Morrow, 184 Mo.App. 515. (8) Each accommodation indorser contracted with all other accommodation indorsers, jointly and severally, and when one indorser died, each other indorser, whether a party defendant or not, was a competent witness to testify as to the agreement existing between the indorsers, in a suit for contribution at the instance of one indorser who was compelled to pay the obligation. The indorser who paid was thereafter the opposite party to the contract, and the death of one joint contractor did not disqualify the deceased's co-contractors from testifying. Citizens Ins. Co. v. Broyles, 78 Mo.App. 364; Hill-Dodge Banking Co. v. Loomis, 104 Mo.App. 62; Vandergriff v. Swinney, 158 Mo. 527; Short v. Thomas, 178 Mo.App. 400; 4 Jones on Evidence, p. 633, sec. 773. (9) Sec. 191, R. S. 1909, requires all demands against estates to be exhibited within one year from the publication of the notice to creditors, but a claim barred by the statute and not presented for allowance within the time limited above, may, nevertheless be used as a set-off in the defense of a claim against the estate. Stiles v. Smith, 55 Mo. 363; Green v. Conrad, 114 Mo. 651.
-- Quackenboss is the administrator, c. t. a., of the estate of Andrew Doerr, and brought seven separate suits against Harbaugh, executor of the estate of Detlef Von der Lippe, to enforce contribution on payments made by his decedent on seven notes of the Joan D'Arc Mfg. & Supply Co., on which the names of both Doerr and Von der Lippe appear as co-makers or as indorsers or in which Doerr was the payee and ...
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