Reinhard v. Dorsey Coal Co.

• Decision Date: 05 April 1887
• Citation: 25 Mo.App. 350
• Parties: CHARLES REINHARD ET AL., Respondents, v. DORSEY COAL COMPANY, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 350

CHARLES REINHARD ET AL., Respondents, v. DORSEY COAL COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 5, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

JOHN B ROEDER, for the appellant; FISHER & ROWELL, of counsel The holder of a note is, prima facie, the owner only when the note is made payable to " " " " " bearer," or where the indorsement is admitted, or is treated as having been proved. LaChance v. Loeblein, 15 Mo.App. 460; Grille v. Loxon, 7 Mo.App. 97. The indorsement of the payee must be duly proved to have been made. Union Savings Ass'n v. Diebold, 1 Mo.App. 323. The plaintiffs have no title as indorsees. Patterson v. Cave, 61 Mo. 439; Daniels Neg. Inst. [3d Ed.] sect. 729.

WALKER & WALKER, for the respondents: The holder of a note is, prima facie, the owner. LaChance v. Loeblein, 15 Mo.App. 460; Grille v. Loxen, 7 Mo.App. 97; Shirts v. Overjohn, 60 Mo. 305; Horton v. Bayne, 52 Mo. 533; Globe v. Stahl, 23 Mo. 451; Chaffee v. Taylor, 3 Allen 600.

OPINION

ROMBAUER J.

This is an action on a negotiable promissory note, by the holders, who claim to be indorsees for value before maturity, against the maker. The note is payable to the order of Henry Fink & Son, and bears on the reverse side the endorsement: " Hy. Fink & Son," written thereon in the presence of the plaintiffs, under the circumstances hereinafter stated.

There was a judgment for the plaintiffs in the trial court, and three points are presented for our consideration upon this appeal: (1) Whether the court admitted illegal testimony offered by the plaintiffs. (2) Whether the court erred in refusing the defendant's instruction, which is a demurrer to the plaintiffs' evidence. (3) Whether the court erred in rejecting the defendant's offer to prove that the note was obtained by the payees fraudulently, and was supported by no consideration.

As the suit was instituted before a justice of the peace, the appearance of the defendant, without formal plea, was equivalent to a denial of all the facts essential to the plaintiff's recovery, except of the defendant's signature to the note, which is not denied under oath, and stands admitted.

The proof of the plaintiffs' title to the note consisted of evidence of its possession by them, and of the following explanation as to its endorsement. Prior to its maturity a person called upon the plaintiffs, who was a stranger to them, and who said his name was Fink. This person had the note in his possession, and traded it to the plaintiffs for its full value, in goods and cash, and endorsed the note in the plaintiffs' presence, writing on the reverse side thereof, " Hy. Fink & Son."

All this evidence was objected to by the defendant, on the ground that it was incompetent, secondary, and hearsay, and the statement of a third person, not made in the presence of the defendant.

The plaintiffs then read in evidence the note in controversy, with said indorsement thereon, against the defendant's specific objections that the endorsement had not been proved, and that there was no evidence that the person who wrote the name of Hy. Fink & Son on the back of the note, was a member of the said firm, or an agent thereof, or that he had any authority to make such endorsement.

The court overruled these objections, and admitted the endorsement in evidence, there being further testimony that the defendant's manager, the person who had signed the defendant's name to the note, had stated to the plaintiffs, at the date of its maturity, " I know from whom you received this note; you received it from young Fink," which testimony was not objected to.

The defendant then demurred to the evidence as insufficient to show any title to the note in the plaintiffs, which demurrer the court overruled.

These rulings are the first two errors complained of. "...