Rawlings v. Bean

• Decision Date: 31 October 1883
• Parties: RAWLINGS, Plaintiff in Error, v. BEAN et al.
• Court: Missouri Supreme Court

80 Mo. 614

RAWLINGS, Plaintiff in Error,

v.BEAN et al.

Supreme Court of Missouri.

October Term, 1883.

Error to Cass Circuit Court.--HON. NOAH M. GIVAN, Judge.

AFFIRMED.

Robert Adams and E. J. Sherlock for plaintiff in error.

The court committed error in refusing to declare the law as asked by plaintiff.

M. Campbell for defendants in error.

Plaintiff's instructions one and four ask the court to order the jury to find for the plaintiff for the full amount of all the notes, without any proof of the false representations, and without a statement of demand, notice and failure to pay, or any proof that defendants are in any way held as indorsers on the Sellers' notes. Instructions must be predicated on the pleadings and evidence. Raysden v. Trumbo, 52 Mo. 35; Budd v. Hoffheimer, 52 Mo. 297; Russell v. State Ins. Co., 55 Mo. 585; Fitzgerald v. Hayward, 50 Mo. 516; Capital Bank v. Armstrong, 62 Mo. 59; Iron Mountain Bank v. Murdock, 62 Mo. 70.

Indorsers can only be held by presentment, demand and notice. Draper v. Clemens, 4 Mo. 52; Adams v. Darby, 28 Mo. 162; Simmons v. Belt, 35 Mo. 461; Nave v. Richardson, 36 Mo. 130; Armstrong v. Armstrong, 36 Mo. 225. Instructions two and six relate to the chattel mortgage, and ask the court to order the jury to find for plaintiff, if defendants knew of the mortgage, and plaintiff turned over, released or surrendered said mortgage because of false representations made by defendants of their solvency. These instructions omit to specify the date of such representations. If made before the trade, and to Rawlings, they might be pertinent. If made after the trade, the mortgage itself was void, even if known to exist. R. S., § 2503; Bryson v. Penix, 18 Mo. 13; Bevans v. Bolton, 31 Mo. 437. Plaintiff's remaining instructions were also properly refused. The mortgage was to the use of the mortgageor, and was void. R. S., § 2496; State v. Jacob, 2 Mo. App. 183; Lodge v. Samuel, 50 Mo. 204; The mortgage was not recorded, and was, therefore, void. R. S., § 2503; Bryson v. Penix, 18 Mo. 13; Bevans v. Bolton, 31 Mo. 437.

PHILIPS, C.

To understand the questions arising on this record, it will be necessary to set out the pleadings with unusual detail.

The petition alleges that defendants, on the 29th day of December, 1874, executed three promissory notes to Joseph Roebuck, each for $205.28, one due six months after date; one due twelve months after date, and one due eighteen months after date, each bearing ten per cent interest from date. That on the same day said Roebuck assigned, by indorsement, said notes to plaintiff for value. It is further alleged that Mary Sellers and William H. Sellers, by their promissory note of date October 15th, 1874, promised to pay to defendant Bean, or order, $301.64, one year after date, with ten per cent interest from date; that said Bean assigned, by indorsement in blank, and delivered said note to his co-defendant, Whittenger, who assigned it by indorsement, and delivered it to said Roebuck, who assigned the same to plaintiff by delivery. That the firm of Sellers & Co., November 1st, 1874, executed their promissory note to said Bean, or order, for $70, due seven months after date, with ten per cent interest from date; that Bean assigned, by indorsement, and delivered said note to said Whittenger, who assigned it in like manner to said Roebuck, and he, by delivery, to plaintiff. The petition then proceeds to set out that said Roebuck was the owner of a stock of drugs in Pleasant Hill, and on a sale thereof to defendants, the said notes were transferred by defendants to said Roebuck; that at the time of said transaction the said Roebuck owed the plaintiff the sum of $1,500, which was secured by a chattel mortgage on said goods; that the defendants, in order to effect the purchase of said stock of drugs, etc., and the release of said mortgage, falsely, and with intent to defraud, represented to said Roebuck, and to the plaintiff, that the defendants were the owners of a large amount of unincumbered real estate and other property, which rendered them perfectly solvent and responsible on all their contracts; and further falsely and fraudulently represented that Mary and William Sellers, the makers of said last two notes, were solvent. That said Roebuck, relying on said representations, received the said notes for the consideration aforesaid, and the plaintiff, relying on the said representations to him made, received said notes from said Roebuck in payment of the debt Roebuck owed him, and released the said stock of goods from said mortgage. The petition then proceeds to negative the truth of the alleged representations made by defendants; and then avers that, but for the said representations so made by defendants, plaintiff would not have taken said notes in payment of his said debt and released said mortgage. It is then alleged that defendants refused to secure said notes, but continued to sell and dispose of said goods with intent to cheat and defraud the plaintiff. Wherefore he prays judgment for the sum of $615.84, with interest, etc., on account of the three notes set out in the petition, and for the sum of $301.64, with interest, on account of the fourth note, and for $70, etc., on account of the last note named, “and for such other and further relief as equity may demand.”

The answer admitted the execution of the three notes by defendants to Roebuck, and the transfer, by indorsement, of the notes of Mary and William Sellers to Roebuck, as also the notes of Sellers & Co., and that the last two notes were so transferred to Roebuck in part payment for the said stock of drugs, but denied the other allegations of the petition. For a second ground of defense, the answer pleaded that the stock of goods were situate in the county of Cass, and that the said Roebuck and plaintiff also resided in said county. That said alleged chattel mortgage did not describe said goods, so that they could be identified thereby; that said mortgage was never recorded in said county, nor were the goods ever delivered to the plaintiff, the alleged mortgagee, but remained continuously in the possession and control of the mortgageor, who continued to sell the same, etc. It is then pleaded that the defendants had nothing to do with the plaintiff in said purchase of the goods, that they...