Sheedy v. Streeter

• Decision Date: 31 October 1879
• Citation: 70 Mo. 679
• Parties: SHEEDY v. STREETER, Plaintiff in Error.
• Court: Missouri Supreme Court

70 Mo. 679

SHEEDY

v.STREETER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1879.

Error to Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

McClure & Humphrey, Bryant & Holmes and Botsford & Williams for plaintiff in error.

J. E. Merryman, Jas. F. Mister and F. M. Black for defendant in error.

NORTON, J.

The petition charges that, on the 28th day of August, 1871, one R. S. Miller made his promissory note to the order of James Streeter, S. M. Strickler and A. W. Callen, for the sum of $5,000, payable in sixty days from the date thereof; that afterwards, for a valuable consideration, said Streeter, Strickler and Callen indorsed and delivered said note to Eph. Warner, and he to J. R. McClure, who in turn, for a valuable consideration, indorsed and delivered the same to the plaintiff, Dennis Sheedy. It charges Streeter with a liability on said note as a commercial indorser. Streeter, in answer, alleges that he did not indorse said note for value; that he was a mere accommodation indorser thereon; and that to induce him to indorse his name on said note Sheedy represented to him that he (Sheedy) had in his possession $12,000 or $13,000 worth of securities belonging to Miller with which to secure said debt. and which, in case said Miller failed to pay the note at maturity, and he (Streeter) became liable to pay the same, he would deliver to him as an indemnity; that Miller failed to pay said note; that Streeter offered to pay said note upon the delivery to him of said valuable securities of Miller's, so promised, which Sheedy refused to do. Sheedy, in his reply, specifically denies these allegations.

On the trial of the cause plaintiff obtained judgment, and defendant's motion for a new trial being overruled, he brings the case here by writ of error. The principal errors assigned are that the court erred in refusing proper, and giving improper instructions, and in rejecting evidence offered by defendant. The instructions given on behalf of plaintiff and objected to, are as follows: 2. “It is admitted that R. S. Miller executed the note sued on to Strickler, Streeter and Callen, and that they indorsed the same, together with Warner and McClure, and that the s me was delivered to the plaintiff, and if the jury believe from the testimony that said note on the 30th day of October, 1871, was delivered by the plaintiff to G. B. Duy, a notary public, for the purpose of demanding payment of the same from said Miller, and that on that day the banking house of R. S. Miller was closed, and that said notary did demand payment of R. S. Miller, which payment was refused, and that defendant, James Streeter, had notice of the non-payment and protest of said note, as testified to by G. B. Duy, then you should find for the plaintiff, unless you shall, from all the evidence, believe that defendant indorsed said note for the accommodation of said Miller, and that plaintiff agreed with defendant that he (plaintiff) would, in case Miller failed to pay the said note when the same became due, deliver to said defendant the alleged collaterals, and that plaintiff failed to deliver such collaterals to the defendant, and defendant did not get such collaterals.”

The instructions asked by defendant and refused, which we deem material to consider, are as follows: 5. “If the proof in this case shows the defendant indorsed the note sued upon under an agreement with the plaintiff that upon failure of the maker, R. S. Miller, to pay the note when it became due, he, the said plaintiff, would transfer and deliver to the defendant notes and mortgages to indemnify him, the said defendant, as indorser, it was incumbent upon said plaintiff to tender and deliver to said defendant, after said note became due and the refusal of Miller to pay the same, the said notes and mortgages, and if he failed, neglected or refused to do so, he, the said plaintiff, cannot recover in this action.”

8 “If the jury believe from the evidence that the plaintiff stated to the defendant that he held notes and mortgages of R. S. Miller, the maker of the note sued on, which he (Sheedy) agreed to turn over and transfer to the said defendant to indemnify him for his indorsement in the event of Miller's failure to pay the note sued upon, when it became due; and if, before said note became due, Miller made an assignment of his property under the insolvent laws of the State of Kansas, for...