O'Shea v. Lehr

• Decision Date: 01 March 1914
• Citation: 182 Mo. App. 676,165 S.W. 837
• Parties: O'SHEA v. LEHR.
• Court: Missouri Court of Appeals

165 S.W. 837

182 Mo. A. 676

O'SHEA v. LEHR.

St. Louis Court of Appeals. Missouri.

March Term, 1914.

1. BILLS AND NOTES (§ 103)—VALIDITY— FRAUD.

That the maker of a note, a business man, who could read and write, signed it without reading it, believing it to be a receipt, and though the payee characterized it as a receipt, was not sufficient to show fraud.

2. JUDGMENT (§ 956)—IDENTITY OF ISSUES— EVIDENCE.

Whether a note sued on was in issue in a former case, the record of such case was the best evidence.

3. EVIDENCE (§ 91)—BURDEN OF PROOF—PARTY ASSERTING AFFIRMATIVE.

Where plaintiff, in his petition, declared on a loan to defendant, and sought to recover because of his failure to observe the obligation to repay, and defendant answered by general denial, the burden of proof was upon plaintiff.

4. EVIDENCE (§ 94)—BURDEN OF PROOF—PARTY ASSERTING AFFIRMATIVE.

Though the burden of the evidence may shift from side to side, the burden of proof remains throughout on the party asserting the affirmative of the proposition to be sustained.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by Joseph O'Shea against William F. Lehr. From a judgment for defendant, plaintiff appeals. Affirmed.

This is a suit for $2,000 alleged to have been loaned by plaintiff to defendant. Defendant denies that he borrowed the amount, but says plaintiff paid it to him on a note of $5,000. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

Plaintiff says he and defendant were partners in the matter of wrecking some buildings and the sale of the materials therefrom thus acquired, and during the time, on May 22, 1909, he loaned to defendant $2,000. Defendant denies that he was interested as a partner with plaintiff in the matter of wrecking buildings, but says he advanced a certified check of $5,000 to plaintiff, to be deposited with the city authorities as an earnest of good faith when the contract was let to plaintiff, and for this sum plaintiff executed to him the $5,000 note referred to. Touching this matter, plaintiff insists that he did not understandingly execute a note to defendant, but signed a writing, which is in form a promissory note, at defendant's request, believing it to be a mere receipt for the $5,000 draft, as it was so denominated by defendant at the time.

Plaintiff's counsel, in his brief, has stated the facts pertaining to the controversy, and out of which it arises most favorably to his client, and we reproduce that statement here as revealing a general outline of the evidence.

"On September 2, 1908, John P. Boyce, commissioner of supplies for the city of St. Louis, began advertising for sale all of the certain condemned buildings located on city blocks 208 east and 208 west of said city, being the city blocks on which the new municipal court buildings now stand. It was stated in the advertisement that `the successful bidder will take down all structures to the ground line and remove all the material on the aforesaid premises, leaving cellars, cisterns, wells, vaults or other excavations free from débris of any and all kinds on or before December 15, 1908.' The bidder, by the terms of said advertisement, was required to present with his bid a certified check for $5,000 on some bank or trust company of said city, payable to the order of the city treasurer, as a guaranty that all the requirements of the contract would be fulfilled. All bids were to be presented to said commissioner on or before September 14, 1908, the day on which said bids were to be opened.

"On September 11, 1908, plaintiff, in response to a postal card which he received from the Kellermann Contracting Company, asking him to call and figure on some work, called at the office of that company in the Roe building, Fifth and Pine streets. When he called at said office he met defendant, who was the secretary and treasurer of said company. Among other questions which defendant asked appellant at that time was the question of whether or not plaintiff knew of said buildings that were going to be wrecked, and which were situated on the blocks of ground on which said court buildings were to be erected. And defendant also asked plaintiff if he was going to figure on that job. Plaintiff shrugged his shoulders and shook his head, and told respondent that he thought it was too big a job for him, appellant, to handle. This was on the 11th day of September, 1908, only two days before the day on which the bids for said work had to be presented. Defendant then told plaintiff to go to the supply commissioner's office and see what he could do. Plaintiff in response to this request of defendant said: `All right, I will run right up there and see what the conditions are and figure the job.' Appellant did go to the office of said supply commissioner and met there a Mr. Bakersmith, in charge of said office, and asked him what the conditions were in regard to said work, and was told that it required a $5,000 certified check, and Mr. Bakersmith then told appellant that the $5,000 certified check that was required to be presented with the bid would be applied toward the payment of the buildings in case they were the successful bidders. Plaintiff then returned to defendant's office and told defendant what Mr. Bakersmith had told him. Respondent then told plaintiff to come to his office the next day, which was Saturday, and to come down early, 9 o'clock, as respondent was going away, and he would see appellant. Plaintiff did call at defendant's office the next morning about 9 o'clock, remained there about two minutes, and then defendant came out of his private office and said to plaintiff, `Come ahead.' Plaintiff and defendant then went down to the street, and when they got to Broadway defendant said to plaintiff: `If you want to assume a partnership in the wrecking of these buildings up here, I don't want you to tell anybody I have any connection with this, because my company might not like to go into anything outside of its own business.' And plaintiff replied: `That will be satisfactory to me; anything you say to me I will keep quiet.' They then walked up to the German-American Bank, located at the corner of Fourth street and Franklin avenue, defendant went into the bank, and plaintiff remained outside. When defendant came out he told plaintiff he got a certified check for $5,000. They then walked back to defendant's office, at which place defendant asked plaintiff if he had a suit case, and when plaintiff told him he had, he asked to borrow it. Appellant told him all right; that he would get the suit case. Plaintiff then went out to his home, got the suit case, returned with it to defendant's office about 2 o'clock. He went into defendant's private office, and defendant said to him: `Joe, I want you to sign a receipt now. I am in a hurry to get away; it is just a receipt to show, in case anything happens to me on my trip, we will know what become of this $5,000 certified check.' Plaintiff signed the paper which he supposed was a receipt, and went on about his business. In the hurry he never noticed the paper which he signed, supposed it was a receipt, what defendant told him it was. And he did not learn that this paper he signed, and which he supposed to be a receipt, was in the form of a $5,000 promissory note, until after he had instructed his counsel to bring suit against the Kellermann Contracting Company to recover some money which that company owed him for some excavating work done for what was known as the Dickson street job.

"On Monday morning, September 14, 1908, plaintiff called at defendant's office, which was in the office of the Kellermann Contracting Company, and there met one, Wishmeyer, who was in the employ of said company; and Wishmeyer then handed plaintiff an envelope in which was said certified check for $5,000 and two bids, which were written up by Wishmeyer; and in one of these bids, he, Wishmeyer, had inserted the figures $4,100, and in the other he left the place for the amount to be bid blank, and told plaintiff, if he found he could get the buildings at $4,100, to use the $4,100 bid, and, if not, then fill out the $4,900 bid; that is, insert the figures $4,900 in the proposal. Plaintiff went to the office of the supply commissioner with said check and said bids, and then inserted the figures $4,900 in the bid in which the amount was left blank, handed that and said check to Mr. Bakersmith, who was then in the supply commissioner's office. Plaintiff then returned to the office of said contracting company, and reported to Wishmeyer what he had done. The next day he was notified that the contract was awarded to him.

"It appears from the testimony that said supply commissioner would not apply the said $5,000 certified check in payment for said buildings, but required that plaintiff put up $4,900 to pay for the buildings, and also give a bond. Plaintiff reported to Wishmeyer, the person whom defendant had told plaintiff would look after the matter, what said supply commissioner required, and he told Wishmeyer that he had better try and get in communication with defendant, who was then in Colorado. Wishmeyer promised plaintiff that he would try and locate defendant; that he, Wishmeyer, had already made arrangements with a Mr. Janis about a bond, and for plaintiff to go and see him. Plaintiff did call on Mr. Janis, who asked plaintiff who was in the contract with him, and plaintiff first declined to tell him, saying that he promised not to reveal the name of the person who was in the contract with him, but finally told Janis that it was respondent, Lehr. Then the question of getting the $4,900 to pay for the building came up, and Mr. Janis asked plaintiff where he did his banking business, and plaintiff told him at the Merchants-Laclede National Bank. Plaintiff and Mr. Janis then went to said bank, and plaintiff was told by the cashier there that that bank would cash a note if plaintiff...