Shirts v. Overjohn

• Decision Date: 31 May 1875
• Citation: 60 Mo. 305
• Parties: WILLIAM SHIRTS, Plaintiff in Error, v. HENRY OVERJOHN, Defendant in Error.
• Court: Missouri Supreme Court

60 Mo. 305

WILLIAM SHIRTS, Plaintiff in Error,

v.HENRY OVERJOHN, Defendant in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Linn Circuit Court.

H. Lithgow, for Plaintiff in Error.

I. After defendant had advertised the note in a newspaper, he placed his name on the back of the note, thereby ratifying his own act; and the endorsement or acceptance of a note or bill is an admission of the truth of all the facts which are recited in it. (1 Greenl. Ev., § 196; 1 Phill. Ev., 364 and n. 1.) Defendant was guilty of gross negligence and is estopped from taking advantage of his culpable conduct. (2 Par. Conts., 797, 798, and n. w.) He had a remedy by injunction (Hill. Inj., 631, 632; 2 Sto. Eq., 906; Will. Eq., 356, 360); and should have stopped the negotiation of the note.

II. The court erred in giving the instruction for defendant. It did not leave the question of negligence to the jury, as in the cases of Briggs vs. Ewart, (51 Mo., 245,) and Martin vs. Smylee, (55 Mo., 577,) referred to by counsel for defendant.

W. H. Brownlee, for Defendant in Error.

I. The note sued on being procured by fraud the contract is void, if one existed.

II. The signature to the paper sued on being procured by sleight of hand, being substituted in place of the receipt agreed to be signed, it is a forgery and is void. (Briggs vs. Ewart, 51 Mo., 245; Martin vs. Smylee, 55 Mo., 577.)

HOUGH, Judge, delivered the opinion of the court.

This was an action instituted by Shirts, before a justice of the peace against the defendant, Overjohn, as maker of a promissory note for $200, dated October 19, 1872, and payable twelve months after date, to the order of T. England. There was a judgment for the plaintiff before the justice, and defendant appealed to the Linn County Common Pleas Court. At the trial in the Common Pleas Court, the note was read in evidence without objection, together with an endorsement and guarantee in blank by T. England, and also the following endorsement: “Credit fifty dollars on October 28th, 1872. H. Overjohn.”

The defendant, Overjohn, testified as follows: “At the time I made the note sued on, the payee in said note came to me, and wanted me to act as agent for the sale of his plows. England, the payee, was to let me have three plows, but only left one, which was left as a sample to show to farmers, not to sell. At the time I signed the note sued on, I supposed I was giving a receipt for the plows, I never received the plows he promised to send nor anything else. There was no consideration of any kind for the note, which I thought and understood to be a receipt only.”

On cross-examination the defendant said that England wrote the note, and he signed it. He afterwards learned that England was trying to sell the note, and he published a notice in the Brookfield Gazette, warning the public not to purchase it. The day after the advertisement, England called on him, feeling badly about the advertisement, and said that he had sold two of the plows; and that he would give him, defendant, credit on the note for fifty dollars.

England then wrote the credit of fifty dollars on the back of the note and defendant signed it. The editor of the Gazette testified that after a single insertion, the defendant withdrew the advertisement, and according to his best impression, said to him at the time, it was all right.

Plaintiff then offered his own and other testimony to show that he was a bona fide holder for value and before maturity of the note sued on, which testimony was objected to by the defendant, and excluded by the court, and plaintiff excepted.

The plaintiff asked the following instructions:

1. The jury are instructed that it stands admitted that the plaintiff in this suit purchased said note before it came due, for a valuable consideration, and without notice of any fraud between defendant and said England.

2. The jury are instructed that fraud cannot be presumed, but that it must be proven, and although the jury may believe from the evidence, that defendant did not know at the time he signed said note, that it was a note, yet if they believe from the evidence that the defendant placed his name on the back of the note, after he was aware that it was a note, and recognized it as a note, then they will find for the plaintiff.

3. It stands admitted that defendant signed his name on the back of the note in controversy, after he found out that it was a note.

The court refused to give the first instruction as asked, but gave all of it except that portion in italics, and gave the second instruction, and refused the third; to which action of the court, in refusing to give the third and the latter portion of the first instruction, plaintiff at the time excepted.

At the instance of the defendant, the court gave the following instruction: “That if the jury believe from the evidence, that Overjohn, when he signed the note sued on, did not fully understand its character, but thought and understood it to be a receipt for plows, for the sale of which he was to act as agent, and to account to England for them, they are bound to find for defendant.” To the giving of which instruction plaintiff at the time excepted.

There was a verdict and a judgment for the defendant, and plaintiff brings the case here by writ of error.

There were no pleadings in this case, and as there was no testimony of the defendant as to the purchase by plaintiff of the note sued on before maturity for value, and without any notice of any fraud on the part of England, the court committed no error in refusing the first instruction as asked by the plaintiff. The prima facie presumption of law, that every holder of any negotiable paper is the owner of it; that he took it for value, before dishonor and in the regular course of business, would not have warranted the court in instructing the jury that such presumptions were admitted facts.

The third instruction asked by plaintiff should have been given. It clearly appears from the testimony of the defendant, that after he ascertained that he had signed a note to England, instead of a receipt, and England proposed to allow a credit of fifty dollars upon it, such credit was endorsed upon the note, and was accepted and signed by defendant. This testimony of the defendant constituted an admission as fully as if it had been embodied in an answer. The instruction given by the court on behalf of the defendant is seriously objectionable. It directed the jury to find for the defendant, notwithstanding the fact that he freely acquiesced in and ratified the execution of the note, with full knowledge of his mistake, and before England had negotiated it; besides, it is directly in conflict with the second instruction given for the plaintiff. But another, and, as we think, a very grave error, was committed in directing the jury in this instruction, to find for the defendant, if they believed from the evidence that he did not fully understand the character of the instrument signed by him, and thought it to be a receipt and not a note, omitting all reference to the testimony of the defendant himself as to the circumstances under which he signed the note, which was all the testimony there was on that subject, and from which it plainly appears that the mistake of signing a note instead of a receipt, resulted solely from his own negligence and carelessness, without any constraint, artifice or fraud whatever on the part of England. Indeed, on the defendant's own testimony, the plaintiff was entitled to a verdict as a matter of law. The facts testified to by him constituted no defense to the plaintiff's action.

It would be exceedingly difficult to lay down with accuracy a general rule which would be applicable to all cases of this character which might arise; but the result of the best considered cases on this subject may be generally stated to be, that where it appears that the party sought to be charged, intended to bind himself by some obligation in writing, and voluntarily signed his name to what he...