Silverthorne v. Summit Limber Co

• Decision Date: 04 May 1915
• Docket Number: No. 14018.,14018.
• Citation: 176 S.W. 441,190 Mo. App. 716
• Parties: SILVERTHORNE v. SUMMIT LUMBER CO.
• Court: Missouri Court of Appeals

176 S.W. 441

190 Mo. App. 716

SILVERTHORNE v. SUMMIT LUMBER CO.

No. 14018.

St. Louis Court of Appeals. Missouri.

May 4, 1915.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Action by Frances H. Silverthorne against the Summit Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judson, Green & Henry, of St. Louis, for appellant. Holland, Rutledge & Lashly, of St. Louis, for respondent.

REYNOLDS, P. J.

The amended petition upon which this case was tried sets up as a cause of action that defendant made and executed its promissory note, dated on or about July 29, 1904, payable 60 days after demand, in the principal sum of $3,361.40, bearing interest at the rate of 7 per cent. per annum from date; "that said note was made payable either to the plaintiff or to A. D. Silverthorne and indorsed and delivered by him to the plaintiff, and was delivered either to the plaintiff or the said A. D. Silverthorne for the plaintiff, and that the plaintiff does not know whether the said note was made payable to her, or to the said A. D. Silverthorne and indorsed by him, or whether the said note was delivered to her or to the said A. D. Silverthorne for her; but that one or the other of each of said respective alternates is true, but that plaintiff is ignorant of whether it be the one or the other." Averring that plaintiff is the "owner and holder" of the note but that it has been accidentally lost or destroyed, and that she had made due and diligent search therefor nut that it cannot be found, wherefore it is not attached to her petition or filed therewith, plaintiff avers that she attaches as an exhibit to her petition and files therewith her affidavit as to tie loss of the note. Averring that demand had been made of defendant by plaintiff for the payment of the note, the demand beginning on or about November 14, 1911, and continuing until the institution of this action, and that the whole amount is now due, payable and owing to plaintiff, and that interest had been paid on it up to October 27, 1911, but that no interest had been paid since that date, judgment is demanded for the note with interest thereon from and after October 27, 1911, and for costs.

Answering this petition defendant admits that on or about July 29, 1904, it executed its promissory note for $3,361.40, "payable to the order of A. D. Silverthorne, who is the husband of this plaintiff, 60 days after demand; but defendant denies that it ever made, executed or delivered any such note payable to the order of plaintiff Frances IL Silverthorne, and it denies that said note above referred to was executed and delivered by it to said A. D. Silverthorne for plaintiff Frances H. Silverthorne; and defendant further says that it has no knowledge or information as to whether said note was ever indorsed over by said A. D. Silverthorne to plaintiff Frances H. Silverthorne, and it therefore denies that there ever Was such indorsement of said note." Further answering defendant avers that on or about February 28, 1907, it paid the note which it had made, executed and delivered to A. D. Silverthorne in the following manner: $61.40 in cash on that date and a certificate for 33 shares of the preferred stock of the Summit Lumber Company of the par value of $100 per share, issued by defendant to A. D. Silverthorne at his instance and request and with the knowledge and consent of his wife, the plaintiff herein, in full payment and settlement of the balance of $3,300 called for on the face of the note. Whereupon the note was surrendered to defendant and canceled and destroyed. It is further averred that this certificate for 33 shares of the preferred stock was duly issued and delivered by defendant as above stated in payment of the note, to one Albert E. Silverthorne, a son of plaintiff and of A. D. Silverthorne, her husband, Who was acting as agent for the owner of the note at that time, and that this certificate has been in the possession and control of Albert E. Silverthorne, son of plaintiff, as such agent from the date of its issue, in February, 1907, until January, 1912, about the time this suit was brought.

A general denial was filed to this answer by way of reply.

There was a trial before the court and jury resulting in a verdict for plaintiff for the amount claimed, plaintiff executing a bond as required by statute as in the"case of a lost note, the bond approved by the court. Filing a motion for new trial and excepting to the action of the court in overruling it, defendant has duly appealed to our court.

There are four errors assigned here. First, to the giving of an instruction on behalf of defendant; second, in refusing one asked by appellant; third, error in refusing to admit in evidence certain letters, and fourth, that the trial court erred in not setting aside the verdict on the ground that it was against the weight of the evidence and was not supported by any substantial evidence as to one material allegation.

The first and second assignments may be considered together. The instruction given at the instance of plaintiff told the jury that if it believed from the evidence that defendant, on the date named, executed its promissory note for the sum named "and if you believe and find from the evidence that said note was thereafter delivered to plaintiff, and that since said note was delivered to the plaintiff the same has been and is now lost or destroyed, and that at the time said note was lost or destroyed, if you so find, plaintiff was the owner of said note, and is now the owner of said note, and if you believe and find from the evidence that the principal of said note has never been paid in whole or in part, and that the interest on said note from and after the 27th day of October, 1911, is due and unpaid, then your verdict will be for the plaintiff in such sum as you may believe and find from the evidence is now due and unpaid upon said note, not exceeding, however," etc.

The instruction asked by defendant and refused was to the effect that if the jury found that defendant executed its promissory note of the date named, "payable to A. D. Silverthorne, plaintiff's husband, or order, and if you further find from the evidence that said note was never indorsed over by said A. D. Silverthorne, to Frances H. Silverthorne, then your verdict herein must be for defendant, even though you may believe that the money represented by said note in fact belonged to plaintiff and not to A. D. Silverthorne."

The instruction, the substance of which we have set out as given for plaintiff, was the only one given at her instance. Refusing the instruction asked by defendant, which we have set out, the court, at the instance of defendant, gave two instructions. One was to the effect that even though the jury "may find from the evidence that the note sued upon by plaintiff was originally made payable to her or that it was made payable to her husband, A. D. Silverthorne, and was by him indorsed over to plaintiff, yet if you further find that plaintiff sent said note to her son Albert E. Silverthorne, or to the Summit Lumber Company, in 1907, for the purpose of having the same surrendered or cancelled and preferred stock of the Summit Lumber Company issued in lieu thereof, and if you find that the certificate for 33 shares of the preferred stock of the defendant company was in fact issued to A. D. Silverthorne with her knowledge and consent, and the balance of $61.40 was then paid her in cash, then your verdict must be for defendant."

The other instruction given at the instance of defendant was to the effect that if the jury found from the evidence that plaintiff, in 1904, sent her son Albert E. Silverthorne $3,361.40 "to invest for her and authorized him to invest it as he deemed best, "and if you further find that he thereupon loaned the money to the Summit Lumber Company and issued its note therefor payable either to plaintiff or to her husband, A. D. Silverthorne, and if you further find that thereafter, in 1907, or prior thereto, plaintiff sent said note to her said son, Albert E. Silverthorne, for the purpose of having him make such changes in said investments as he deemed best; and if you further find that thereupon Albert E. Silverthorne then cancelled said note and issued to plaintiff, or to A. D. Silverthorne for her, a check for $61.40, and a certificate for 33 shares of the preferred stock of the Summit Lumber Company, then your verdict herein must be for defendant, even though you may believe that plaintiff never knew that said A. E. Silverthorne had canceled said note and issued preferred stock therefor."

We have set out all the instructions given as showing the manner in which the law of the case was presented to the jury.

The argument of learned counsel for appellant against the instruction given at the instance of plaintiff, respondent here, proceeds upon the hypothesis that this instruction not only permits a recovery without proof of any indorsement of the note by A. D. Silverthorne, but that it also presents a false issue to the jury in reference to the payment of the note in cash, when no such issue is made by the evidence or pleadings, the defendant's answer, it being claimed, alleging merely that the note had been paid by its surrender and the acceptance of preferred stock of the company in lieu thereof, there being no issue made and no evidence as to any cash payment of the note, except as to $61.40 thereof, while the language of this instruction, it is argued, submits to the jury the issue of a cash payment. Hence it is argued that the use of the word "paid" would mislead the jury into thinking that unless the note was paid in cash—in money—defendant was liable, thereby precluding the defense that if it was substantially paid in stock, defendant was not liable. We do not think that any jury of ordinary intelligence, with the evidence as here before it, would have been so misled. But apart from this, whatever...