Santer v. Leveridge

• Decision Date: 23 March 1891
• Parties: SANTER v. LEVERIDGE.
• Court: Missouri Supreme Court

15 S.W. 981

103 Mo. 615

SANTER v. LEVERIDGE.

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

ACTIONS ON LOST INSTRUMENTS — PLEADING — BOND OF INDEMNITY — ASSIGNMENT.

1. Where motions to strike out an amended petition as stating different causes of action from that set forth in the original and to make the petition more definite and certain are made, and the defendant, instead of standing upon his motions, answers over to the merits, the error, if any, is waived.

2. Under Rev. St. Mo. 1879, § 3236, where a defendant is a resident of the state at the time the action accrues, and afterwards departs from and resides out of the state, the time of his absence is no part of the time limited by the statute for the commencement of the action.

3. Under Rev. St. 1879, §§ 3559, 3651, 3652, regulating actions on lost instruments of writing, it is sufficient if it appears on the trial that the instrument is lost and its contents proven by parol evidence, and an indemnity bond in double the amount of the debt and interest be executed to secure the defendant against all claims of other persons, and it is not essential that the petition should set forth that the paper is lost, and be accompanied by a good and sufficient bond of indemnity, or make a tender thereof, as was required in equity practice.

4. A debt evidenced by a note which has been lost years after it has matured, and lost its negotiability, may be assigned by an instrument in writing, so as to enable the assignee to bring suit thereon in his own name.

5. Where one of two partners is sued on a firm note, which is shown to be lost, he cannot complain that the indemnity bond required by Rev. St. § 3652, is so drawn as to secure him alone against claims of other persons on the bond.

6. It is no defense in an action on a note that has been assigned by the payee that the transfer was made with a view of putting the proceeds beyond the reach of the payee's creditors.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

English & Stonestreet, for appellant. George R. Thompson, for respondent.

BRACE, J.

This action was commenced in the Jackson circuit court on the 13th of April, 1887. In the original petition the plaintiff declared in one count on two promissory notes, each dated the 24th of November, 1869, and bearing 10 per cent. interest, — one payable 9 months after date, for the sum of $600; and one payable 12 months after date, for the sum of $500; and both alleged to have been executed and delivered by the defendant to one C. F. Aehle, and by him indorsed and transferred to the plaintiff. The notes counted on were not filed with the petition. A demurrer was sustained to this petition, and the plaintiff filed an amended petition in two counts, the first of which, omitting caption, is as follows: "Now comes the plaintiff, and by leave of the court for that purpose first obtained files this, his amended petition, and for his first cause of action says: The full name of said defendant served with summons herein is James Munroe Leveridge; that on the 24th day of November, 1869, said defendant was doing business at Boonville, Mo., as member of the firm of Wilson & Leveridge, and on said day said firm, for valuable consideration, executed and delivered to one C. F. Aehle their promissory note of said date, whereby said firm promised to pay to said Aehle, in twelve months from said date, the sum of $500, with 10 per cent. interest per annum after maturity. Plaintiff says that on or about the 20th day of December, 1886, said Aehle, for valuable consideration, duly transferred and assigned said note to this plaintiff. No part of said sum or interest has been paid, and no payments have been made upon said note, but said firm has failed and refused to pay the same or any part thereof. Plaintiff says there is now due him on said note from defendant, the sum of $1,375. Plaintiff says that after the aforesaid cause of action accrued against the defendant, who was then a resident of this state, and in the year 1873, said defendant departed from this state, and has ever since resided out of the same, up to the present time. Plaintiff alleges, as an excuse for not filing said note herewith, that the same is lost. Wherefore plaintiff prays judgment against defendant for said sum of $1,375." The second count was in the same form on the $600 note. A general demurrer to the amended petition having been overruled, the defendant filed a motion to strike out said petition for the reason that it sets forth different causes of action from those contained in the original petition. This motion having been overruled, the defendant then filed a motion to require the plaintiff to make his petition more certain, in this: "that it shall show when the notes sued on were lost, — if before or after the alleged assignment thereof." This motion being overruled, the defendant filed the following answer to the first count of the petition: "Defendant, for answer to first count of plaintiff's petition, states that he admits the execution of the note in said count described, but states that the same was a negotiable promissory note under the statutes of Missouri. Defendant further states that the cause of action stated in said count accrued more than ten years before the filing of the petition herein, and is barred by the statute of limitations of this state. Defendant denies each and every allegation in said count not herein admitted." To the second count precisely the same answer was made. The case was submitted to the court without a jury. All the allegations of the petition, including the loss of the notes, were fully and fairly proven by the evidence introduced by the plaintiff. The defendant offered none, but at the close of the evidence asked the court to give an instruction in the nature of a demurrer to the evidence, which being refused, asked the court to give the following...