Sanders v. Chartrand

• Decision Date: 12 November 1900
• Parties: SANDERS et al. v. CHARTRAND, Appellant
• Court: Missouri Supreme Court

59 S.W. 95

158 Mo. 352

SANDERS et al. v. CHARTRAND, Appellant

Supreme Court of Missouri, First Division

November 12, 1900

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Reversed and remanded.

Kinealy & Kinealy for appellant.

(1) The petition in this case states a cause of action upon promissory notes, and in order for plaintiffs to recover it was necessary for them to allege and prove that the notes sued on were executed by the North End Building and Loan Association. Showing only that they were attested by the secretary is not sufficient for that purpose. Cole v Armour, 55 S.W. 476; Smith v. Roach, 59 Mo.App 115; Cox v. Bishop, 55 Mo.App. 135; Simmons H. Co. v. Grocer Co., 64 Mo.App. 681; Famous S. & C. Co., v. Iron Works, 51 Mo.App. 72; First Nat. Bank v. Hogan, 47 Mo. 472; 3 Am. & Eng. Ency. of Law (2 Ed.), p. 273. (2) Plaintiffs' first instruction is erroneous because it authorizes a recovery on a state of facts other than those alleged as the cause of action in the petition. If drawn on the theory of an estoppel on the part of the Building Association to deny the execution of the notes, it is clearly erroneous, because no issue of estoppel was raised by the pleadings. Moreover, the evidence did not tend to prove facts sufficient to constitute an estoppel. Huston v. Tyler, 140 Mo. 252; Ferneau v. Whitford, 39 Mo.App. 311.

O. J. & R. Lee Mudd for respondents.

(1) In support of our motion to dismiss: (a) Defendant, although presenting here no assignment of errors proper, as required by the rules, yet asked at the trial an instruction (Defendant's refused numbered 1) in nature of a demurrer to the evidence, and argues here that the court erred in refusing it. This calls for all the evidence. Hilz v. Railroad, 101 Mo. 42; Isaac v. Lumber Co., 47 Mo.App. 30. (b) And where the point is sought to be made that the trial court erred in refusing an instruction in the nature of a demurrer to the evidence, all the evidence should be set forth in the abstract. And an abstract failing under such circumstances to set forth all the evidence is insufficient to a "complete understanding" of "all the questions presented to this court for its decision." Trimble v. Wollmann, 62 Mo.App. 541; R. S. 1899, sec. 870; Rules of Supreme Court, 13, 15, 16. (c) The respondent is not required to bring up the evidence in an additional abstract, but if the abstract appear insufficient for a full and complete understanding of "all (not some of) the questions presented to this court for decision," the appeal will be dismissed. Garrett v. Coal Mng. Co., 111 Mo. 279; Brand v. Cannon, 118 Mo. 595. (2) Even if the instructions are wrong, the verdict and judgment are right, and, in the interest of justice, should be affirmed.

MARSHALL, J. Robinson and Valliant, JJ., concur; Brace, P. J., concurs in all except the first paragraph.

OPINION

MARSHALL, J.

This is a suit on five notes made by the North End Building and Loan Association, to the order of the plaintiffs, the first dated February 8, 1896, for $ 400, the second dated March 26, 1896, for $ 650, the third dated October 6, 1896, for $ 525, the fourth dated November 9, 1896, for $ 1,550, and the fifth dated December 10, 1896, for $ 2,500, all bearing seven per cent interest from date.

The answer is a verified plea of non est factum and a special plea of want of consideration, coupled with a general denial. The reply is a general denial.

The suit was originally instituted in 1897 against the North End Building and Loan Association, but that association was dissolved by a decree dated April 13, 1898, and Mark R. Chartrand appointed receiver thereof, and the suit was revived against him. From 1892 until August, 1897, one John C. Obert, was secretary of the North End Building and Loan Association, and during the same time he was also secretary of the North St. Louis Building and Loan Association. During the same period Charles James was the president of the North End Building and Loan Association.

The notes in suit grew up in this way. The plaintiffs from time to time loaned money to the North St. Louis Association and received from Obert, with whom all the dealings were had, notes of that Association therefor. Some time about 1894 the plaintiffs desired to change their loans from the North St. Louis to the North End Association. This was done by the plaintiffs surrendering the notes of the North St. Louis Association to Obert its secretary, and by Obert as its secretary drawing the check of the North End Association to his own order or that of some one else and having the check indorsed by the payee, and then issuing to the plaintiffs the notes of the North End Association.

The record does not disclose whether or not the books of the North St. Louis Association showed that its notes had been paid, but it shows, vaguely, that the books of the North End Association did not show these notes to the plaintiffs among its bills payable. The record does not show clearly how much the plaintiffs had loaned the North St. Louis Association at that time. The notes sued on, are renewal notes, except perhaps the last dated December 10, 1896, for $ 2,500, and only a part of this note appears to represent any money ever loaned by the plaintiffs to the North St. Louis Association. The books of the North End Asosciation did not show any of these transactions. The directors of the North End Association authorized the president and secretary to borrow money and to issue notes therefor. Every one had implicit confidence in Obert and he transacted the business of the association pretty much as he pleased. When the president's signature to a note or check was needed it was made out by Obert and by him taken or sent to the president for his signature and he signed it without question. Obert testified that he signed these notes, as secretary, and that he was, to a certain extent, familiar with James's signature, and that the signatures to these notes looked like Mr. James's; and again he was asked: "Q. Will you say you saw him (James) sign any notes at all issued to Sanders?" and he answered: A. "Yes, I know he signed some of them." Mr. James admitted the general course of business above pointed out, and said he had no recollection of ever signing these notes; but that from an inspection of the notes themselves he would say he had not signed them. George Hilke, one of the directors of the North End Association, testified that, in 1895, Sanders spoke to him about the notes and he spoke to Obert about them and Obert said they were notes of the North St. Louis Association and showed him the books of the two associations and the books so showed, and this satisfied the witness. Afterwards Sanders showed him the notes and he saw they were the notes of the North End Association. He told the president, James, about it, privately, about two years before the failure and James said he knew nothing of it. About a week or two after the failure he brought up the subject of those notes at a meeting of the board of directors, and at first the directors did not want to believe there were any such notes. "Afterwards they said it was all right; he had the notes all right." Obert said he used the money so borrowed in the business of the North End Association.

In order to understand the theory upon which the parties tried the case in the circuit court it is necessary to set out in full the instructions asked by them respectively and given and refused by the court.

On behalf of plaintiffs the court instructed the jury as follows:

"1. The jury are instructed that if they believe and find from the testimony in this case that Obert, at the time of making the notes sued on in this case, was the secretary of the North End Building and Loan Association and as such entrusted with the custody of its seal and the general management of its business and in such capacity was either authorized, by express resolution of the board of directors or with their knowledge and assent permitted to borrow money for the purpose of said building and loan company and to issue for such loans the notes of said company executed by its president and secretary and attested by its seal; and you believe that under such circumstances said Obert, as such secretary, obtained of plaintiffs, for the purposes of said association, sums of money, and issued in equal amounts and delivered to plaintiffs therefor the notes sued on in this case as and for the notes of said association, and that this was done by Obert, in the regular course of his business as such secretary, and at the office of said association; and you further find, from the evidence, that plaintiffs are now the holders of such notes, and that they are unpaid by said association, then your verdict must be for the plaintiffs as to such notes, and it is immaterial to such verdict under such circumstances, whether said Obert after so obtaining such money properly accounted therefor to said association or not.

"2. The court instructs the jury that, although you should find that as to one or more of the notes sued on no cash money passed from plaintiffs to Obert as secretary of the North End Building and Loan Association, as the consideration for such notes, yet, if you find that at the time Obert was also secretary of the North St. Louis Building and Loan Association, and plaintiffs, being holders of said notes of said North St. Louis Association, indorsed and delivered the same to Obert as a consideration for such notes of the North End Association, and that Obert, as secretary of said North St. Louis Association, cancelled said North St. Louis notes and drew checks on said North St. Louis Association and then as secretary of the North End Association, received money from the North...