Reed Brothers v. Nicholson

• Decision Date: 11 December 1900
• Parties: REED BROTHERS, Appellants, v. NICHOLSON et al
• Court: Missouri Supreme Court

59 S.W. 977

158 Mo. 624

REED BROTHERS, Appellants, v. NICHOLSON et al

Supreme Court of Missouri, First Division

December 11, 1900

Appeal from Lawrence Circuit Court. -- Hon. J. C. Lamson, Judge.

Reversed and remanded.

Jos. M McPherson and Wm. B. Skinner for appellants.

(1) Appellants contend that the only question presented by the record in this case is whether or not the instrument sued on comes under the head of "bond, bill of exchange or promissory note." If it does, then under R. S. 1889 sec, 2042, now R. S. 1899, sec. 597, the judgment in the case of Reed Bros. v. R. D. O. Nicholson, was properly taken at the August term, 1896, defendant having been personally served more than fifteen days before the first day of said term. (2) The court erred in excluding the roll and judgment in the case of Reed Bros. v. R. D. O. Nicholson. Defendant was sued on a promissory note and was served with process more than fifteen days before the August term, 1896, and final judgment was properly taken at said term. The instrument on which this judgment was based, was a promissory note. It has every element of a promissory note. A writing which has every element of a promissory note does not lose its character as such, by reason of a collateral agreement appended to it not inconsistent with the contract in the note. Ewing v. Clark, 76 Mo. 545; Ewing v Clark, 8 Mo.App. 570; Tiedeman on Commercial Paper, Ch. 11, sec. 29, p. 79.

H. Brumback and Gibbs & Jennings for respondents.

Respondents agree with appellants in this that the only question for this court to pass upon is whether the instrument sued on the original suit by Reed Bros. v. R. D. O. Nicholson is a promissory note within the meaning of section 597, Revised Statutes 1899. Summons was served in this case just twenty-two days before the first day of the August term of circuit court, 1896, at which term the judgment was taken against Nicholson and on this judgment plaintiffs have based the suit at bar now. The trial court excluded the record evidence offered by plaintiff for the reason that the records showed that the summons had not been served at least thirty days before the first day of the term at which the judgment was rendered and in so holding the respondents contend the court was right. The instrument sued on is not a promissory note but is more of the nature of a bill of sale for a certain patent right. To load down commercial paper with collateral agreements can have no other effect than to destroy the simplicity of such paper. Hope v. Barger, 112 Mo. 341; Bank v. Jacobs, 73 Mo. 35; Bank v. Marlow, 71 Mo. 618; Bank v. Gay 71 Mo. 627.

OPINION

BRACE, P. J.

On the 7th day of July, 1896, the plaintiffs instituted suit against the defendant R. D. O. Nicholson in the Lawrence county circuit court by petition as follows:

"Plaintiffs state that they are co-partners doing business under the name and firm of Reed Bros., and which firm is composed of S. S. Reed and Frank Reed; that the defendant Robert D. O. Nicholson, by his initials of R. D. O. Nicholson, by his promissory note herewith filed, dated October 15, 1895, promised, for value received, to pay to J. A. Fretwell or bearer, the sum of three hundred and sixty dollars six months after date thereof, with interest thereon from date at the rate of eight per cent per annum; that plaintiffs for value purchased said note before maturity and are now the legal holders and owners of the same. Wherefore plaintiffs pray judgment for said sum of three hundred and sixty dollars yet due and payable and interest thereon from date, and for proper relief in the premises."

And thereupon on the same day sued out a writ of summons of that date against the defendant returnable "on the first day of August term, 1896, of said court," which was duly served on the defendant, personally, on the 25th of July, 1896, twenty-two days before the first day of said term.

Afterwards, on the 21st day of August, 1896, and on the fifth judicial day of said term, the said defendant failing to appear or plead to the petition, judgment was rendered in said cause as follows:

"August 21st, 1896, 5th day of term.

"Reed Bros. vs. R. D. O. Nicholson.

Judgment for plaintiff for $ 381.60.

Judgment to bear 8 per cent interest.

"Now at this day come the plaintiffs, but the defendant although called, comes not, but makes default, and it appearing to the satisfaction of the court that the defendant has been duly notified of the commencement of this suit and of the object and general nature thereof more than fifteen days before the first day of the present term of this court by process of summons personally served on the defendant by the sheriff of Lawrence county, and that the defendant wholly fails to appear and plead, answer or demur to plaintiffs' petition herein within the time required by law and the rules of this court, but wholly makes default herein and the court being fully advised in the premises finds the issues for the plaintiffs. It is therefore considered, ordered and adjudged by the court that the plaintiffs have and recover of and from the defendant, R. D. O. Nicholson, the said sum of $ 381.60, together with eight per cent interest on the same, together with their costs on the same laid out and expended, for all which execution may issue."

Upon which judgment execution was issued and returned nulla bona. Thereupon the plaintiffs instituted this suit, which is a proceeding in equity to set aside a certain deed executed and delivered by the said R. D. O. Nicholson to his wife and co-defendant, Nancy E. Nicholson, dated the 27th day of March, 1896, and duly recorded on the 30th of April, 1896, whereby he conveyed to her certain real estate described in the petition for the expressed consideration of $ 4,500, on the ground, as alleged in the petition, that the same was so executed, delivered and recorded without any consideration in fact and for the purpose of hindering, delaying, and defrauding the plaintiff and other creditors of the said R. D. O. Nicholson, who it is charged has no other property out of which said judgment can be satisfied. The defendants filed separate answers to the petition denying that the deed from R. D. O. Nicholson to Nancy E. Nicholson was made to defraud creditors, claiming the premises as a homestead, and pleading failure of consideration in the note on which the judgment was obtained.

On the trial the plaintiffs offered in evidence the judgment and the roll of the case in which it was rendered, to the admission of which the defendants objected, their objection was sustained and the evidence was excluded. Thereupon the plaintiffs took a nonsuit with leave, and failing to have the same set aside upon motion duly filed, bring the case here by appeal. In the roll was the note referred to in the petition as therewith filed, and which was as follows:

"$ 360.00 Halltown, Mo., Oct. 15, 1895.

"Six months after date I promise to pay to J. A. Fretwell, or bearer, three hundred and sixty dollars at any bank of Mt Vernon, Missouri, for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of 8 per cent per annum until fully paid.

"The consideration of this note is the right granted by payee to payor to use, sell and otherwise dispose of, within the limits of the county of Greene and not elsewhere, a certain patented bed brace, known as the J. A. Fretwell, patent, and being patent No. 515, 706, according to deed of patent granted at Patent Office of United States of America to J. A. Fretwell, dated February 27, 1894.

"The payor admits that this note is the entire contract...