Schlamp v. Manewal
| Decision Date | 30 December 1916 |
| Citation | 190 S.W. 658,196 Mo.App. 114 |
| Parties | P. M. SCHLAMP, Appellant, v. L. A. MANEWAL et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
AFFIRMED.
Judgment affirmed.
Thomas D. Cannon for appellant.
(1) The answer of defendant Manewal avers no defense to the plaintiff's petition, and upon the record the plaintiff is entitled to a direction from this court to the trial court to enter judgment in plaintiff's favor upon the cause of action set forth in his petition. Bank v. Refgr Co., 236 Mo. 415; Poindexter v. McDowell, 110 Mo.App. 233; First Nat. Bank v. Bennett, 114 Mo.App 695. (2) Upon the record at the close of the whole case the plaintiff was entitled to a peremptory instruction directing a verdict in his favor against both defendants as requested by instruction "B," and the court erred in refusing said instruction. Bank v. Refgr. Co., 236 Mo. 415; Poindexter v. McDowell, 110 Mo.App. 233; First Nat. Bank v. Bennett, 114 Mo.App. 695. (3) The note in suit was negotiated by Emil Schlamp to P. M. Schlamp, the plaintiff, for value; and even though it was negotiated after maturity for the first time, it is still a binding and valid obligation against both defendants, the accommodated and accommodating party. Marling v. Jones, 138 Wis. 89; Mersick v. Aldermann, 77 Conn. 634; Johnson v. Franklin Bank, 173 Mo. 182. (4) The liability of Manewal on the note sued on is that of a joint maker. Citizens Bank v. Douglas, 178 Mo.App. 689; Sec. 10,161, R. S. 1909. And the court erred in giving and reading to the jury instruction number 2, whereby it directed a verdict for defendant, Manewal, if the jury found that "he (Manewal) received none of the stock or proceeds thereof taken over by Schlamp for said note." Failure of consideration moving to Manewal is no defense to him in this case. Sec. 10,000, R. S. 1909; Banking Company v. Morrow, 184 Mo.App. 518. (5) Instruction number 2 is erroneous in that it directs the jury to find a verdict in favor of defendant Manewal if the jury "further find that the defendant Manewal did not authorize the negotiation and delivery of said note after its maturity, and did not know that it had been so negotiated and delivered to plaintiff after maturity." The note did not cease to be a negotiable instrument when it fell due. Biglow on Bills and Notes (2 Ed.), p. 253; Sec. 10,017, R. S. 1909; Lane v. Hyder, 163 Mo.App. 688; Hunleth v. Leahy, 146 Mo. 418. The agency of the party accommodated (Schlamp) to negotiate the note in suit and raise the money thereon did not cease at maturity of the note. And the mere fact that the note was not negotiated by Schlamp until after maturity cannot defeat the plaintiff's recovery upon the ground that there was no consideration moving to Manewal (if such was the fact). Marling v. Jones, 138 Wis. 90; Mersick v. Aldermann, 77 Conn. 634; Brannon Neg. Instr. (2 Ed.), p. 38. (6) The court erred in admitting testimony, over plaintiff's objection to show the note sued upon was to be discounted for cash only. Parol evidence is not admissible to show that the maker of a note, which purports to be payable absolutely, only promised to pay upon condition. Bank v. Martin, 171 Mo.App. 201; Holmes v. Farris, 97 Mo.App. 309.
Vital W. Garesche and George B. Webster for respondent.
(1) The appellant did not challenge the sufficiency of the answer by demurrer or motion in arrest in the lower court, nor did he assign the alleged insufficiency as error in his motion for a new trial. The point is therefore not available for his purpose in this court. Wilkerson v. Bruce, 37 Mo.App. 156; Oil Well Supply Co. v. Wolfe, 127 Mo. 624; Stark v. George Knapp & Co., 160 Mo. 529; State Bank v. Citizens Bank, 114 Mo.App. 663; Johnson County Bank v. Mills, 143 Mo.App. 265; Long v. Lackawanna C. & I. Co., 233 Mo. 713. (2) The trial court was right in refusing to direct a verdict for the appellant. To have done so would have been error. Dyer v. Cowden, 168 Mo.App. 649; Hancock v. Railroad, 163 Mo.App. 259; First Nat'l Bank v. Gregg, 74 Mo.App. 639; Johnson v. Grayson, 230 Mo. 380. (3) The negotiation of the note after maturity did not keep it alive as a valid obligation of the respondent, for the record shows without contradiction that he neither knew of it nor participated in the negotiation or the proceeds thereof. R. S. 1909, sec. 9978. (4) The respondent was not liable as a joint maker as between himself and the appellant. Norton, Bills and Notes (3 Ed.), sec. 85; Lamson v. Beard, 94 F. 43. (5) The court's instruction number 2 is a correct declaration of law and was properly given. R. S. 1909, secs. 9999, 10022; Farmers Natl. Bank v. Dreyfus, 82 Mo.App. 399; Grand River College v. Robertson, 67 Mo.App. 329; Jones, Evidence, Civil Cases (2 Ed.), sec. 495. (6) There was no error in the admission of evidence to show the purpose for which the note was given. Ware v. Allen, 128 U.S. 590; Shantz v. Shriner, 167 Mo.App. 635; Farmers Natl. Bank v. Dreyfus, 82 Mo.App. 399; Williams v. Abrutt, 72 Mo.App. 62; Grand River College v. Robertson, 67 Mo.App. 329; Jones, Evidence, Civil Cases (2 Ed.), sec. 495.
The plaintiff sued the defendants upon the following note:
The jury returned a verdict in favor of the plaintiff and against the defendant Emil Schlamp, but further found in favor of defendant L. A. Manewal and against the plaintiff. Plaintiff filed a motion for a new trial which was overruled, and he has perfected his appeal to this court. The trial court directed the jury to return its verdict against the defendant Emil Schlamp.
The evidence on the part of the defendant, L. A. Manewal, tended to show that at the time the note in suit was executed, he was a neighbor and a friend of Emil Schlamp, the other defendant; that the said Emil Schlamp came to him for the purpose of borrowing $ 1,000 for use for his family, but Manewal informed said Emil Schlamp that he was unable to lend him the money at that time; that thereupon the said Emil Schlamp requested Manewal to sign a note with him, payable to the order of P. M. Schlamp, the plaintiff herein. On the assurance or statement from the said Emil Schlamp that he, together with his nephew, plaintiff herein, could discount such a note at a bank in Henderson, Kentucky, where the plaintiff was well known, the defendant Manewal signed the note, which is the note here sued on, and delivered the same to Emil Schlamp, the other defendant, who, in turn, immediately or shortly after its execution turned it over to the plaintiff, P. M. Schlamp, who tried to discount it in Henderson, Kentucky, but failed. Thereupon he, the plaintiff, endorsed the note "without recourse" and returned the same to Emil Schlamp. Manewal testified that after the failure of the plaintiff to discount the note at Henderson, Kentucky, he was informed by Emil Schlamp of the failure to so discount the note and informed him, Manewal, that he, Emil Schlamp, had destroyed the note. Manewal further testified, over objection of plaintiff, that at the time the note in question was executed by him, it was agreed between him and Emil Schlamp that the said note was to be discounted only for cash. After the note had been returned by the plaintiff to the defendant Emil Schlamp, it seems that, instead of said note being destroyed, the said Emil Schlamp retained the same in his possession, and in August, 1912, and two days after it was due on its face, he delivered it over to the plaintiff in this case and took from him in payment thereof one hundred shares of the capital stock of the par value of $ 10 each in a corporation known as the Vaza Company, which, at that time, was being promoted by the plaintiff.
The above facts were practically conceded by the plaintiff, except that he testified that he did not know that the defendant, Manewal, had signed the note as an accommodation for Emil Schlamp, but did know that Emil Schlamp was to receive the money upon the note being discounted, but understood from Emil Schlamp, that the note was given to him signed by Manewal to adjust some account or business dealings between him and Manewal. He also testified that the stock above referred to was worth par at the time he acquired the note. After the note was turned over by Emil Schlamp to plaintiff, in August, 1912, it remained in the possession of the plaintiff until some time in January or February, 1913, when he presented it through a bank for collection to Manewal and upon payment being refused instituted this suit on said note.
The defendant Manewal set up in his answer that he had signed the note for the accommodation of Emil Schlamp in order that said Emil Schlamp and the plaintiff might have the note discounted at a bank in Henderson, Kentucky, and it was understood that the note was to be so discounted for cash only, and that when this was not done, the purpose for which the note was given failed, and upon it being negotiated by Emil Schlamp to the plaintiff after its maturity for stock, there was a diversion of the note from its original purpose which relieved the defendant Manewal from liability thereon.
The deposition of Emil Schlamp was introduced in evidence by the plaintiff as an admission against interest, and was received by the lower court for that purpose only. Inasmuch as Emil Schlamp did not appeal, the deposition,...
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