Simmons v. Belt

• Citation: 35 Mo. 461
• Parties: SAMUEL SIMMONS, Defendant in Error, v. HENRY B. BELT et als., Plaintiffs in Error.
• Decision Date: 31 March 1865
• Court: United States State Supreme Court of Missouri

35 Mo. 461

SAMUEL SIMMONS, Defendant in Error,

v.HENRY B. BELT et als., Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1865.

Error to St. Louis Circuit Court.

Plaintiff sued Belt as maker, Sturgeon & Bro. and Crickard (who owned the note) as endorsers.

Defendants, Belt and Sturgeon & Bro., prayed the following instructions, which were refused, and defendants excepted:

1. If Bcrnard Crickard did not endorse and deliver to plaintiff the note sued upon for value received, but only for collection, then said plaintiff cannot recover in this action under the pleadings.

2. If said Crickard was prior endorser to the plaintiff, and now is the legal owner of the note, the plaintiff cannot recover in this action.

Defendants filed a motion for a new trial, which was overruled, and exceptions taken.

The endorsers, Sturgeon & Bro., also filed a motion in arrest of judgment, for want of cause of action stated in the petition as against them, which was overruled, and exceptions taken.

Whittelsey, for defendant Belt.

The court erred in refusing the instructions prayed by defendant.

The note described in the petition was not a negotiable note. It was alleged to have been assigned by Crickard, one of the defendants, for value received. The evidence shows that he owned the note, and endorsed it not for value but for collection. The issue was disproved.

The curious case is presented, that the agent has judgment against his principal for the amount due upon a note owned by himself.

The suit should have been brought in the name of the party in interest. (R. C. 1855, p. 1217, § 1.)

Whittelsey, for Sturgeon & Bro.

I. The court erred in overruling the motion in arrest filed by Sturgeon et als., endorsers.

The note described in the petition did not show that the note was negotiable by the statute, by having the words “negotiable and payable without defalcation.” The note not being negotiable, the plaintiff could only recover by alleging and proving that the maker was insolvent, &c. (R. C. 1855, p. 295, § 15-16, and p. 323, § 6; Jaccard v. Anderson, 32 Mo. 188; Lindsay v. Parsons, 34 Mo. 422.)

II. The petition did not allege that the note was by its terms payable at the Bank of St. Louis, and therefore an

allegation of demand at that place (and not of the maker) and protest upon refusal did not show a proper demand and refusal of payment, to bind the endorsers by notice of nonpayment. (Glasgow v. Pratte, 8 Mo. 336; Sto. Bills Exch. § 355.)

The petition therefore showed no cause of action against the endorsers, and judgment should have been arrested.

Sharp & Broadhead, for defendant in error.

I. As to the first point it is difficult to determine why, or on what grounds, it can be contended for. As early as the first volume of decisions of this court, that question was settled that the maker and endorsers of a promissory note could be jointly sued and were liable together. (Hunter v. Hernstead, 1 Mo. 67.)

Soon after the taking effect of our present Practice Act, the same question was again raised and promptly decided under the Practice Act. (Holland v. Hunton and White, 15 Mo. 476.) And in the case of Page & Bacon v. Snow and others, 18 Mo. 126, which is but a clear and explicit statement of the court by Judge Gamble, that the sixth section of the second article of Practice in Civil Cases (2 R. C. 1855, p. 1218) means what it says, that persons having a cause of action against several, including parties to bills of exchange, promissory notes, &c., may sue thereon against all jointly, or as many as he may choose.

II. The second proposition is directly affirmed by this court in the case of Webb & Hepp v. Morgan, McClung & Co., 14 Mo., 428, under our present Practice Act, where it was admitted on the trial that plaintiff had no beneficial interest in the note or its proceeds, and held it only as endorsee, for collection, from the real owner in interest. (Beattie et als. v. Lett et als., 28 Mo. 596.)

The points (and only points) raised being so obviously frivolous, and were so well and long settled and known, and there being no merits either in the defence or appeal, it is obvious the cause is brought here for delay. We respectfully ask and insist the judgment be affirmed, with ten per cent. damages.

DRYDEN, Judge, delivered the opinion of the court.

The plaintiff below, being the assignee or endorsee of a promissory note, sued the maker and endorsers jointly, and recovered a joint judgment against them. The endorsers moved in arrest, on the ground that the petition showed no cause of action as against them. The motion was overruled, and the case was brought here by writ of error. The petition is as follows, viz.:

“In the St. Louis Circuit Court, September Term, 1861. St. Louis County, Mo. Samuel Simmons, plaintiff, v. Henry B. Belt, John Sexton, Sr., John Sexton, Jr., Isaac H. Sturgeon, Thomas L. Sturgeon, and Bernard Crickard, defendants.

Plaintiff states that on the 17th day of April, 1860, at the county of St. Louis, said defendant, Henry B. Belt, made his certain negotiable promissory note of said date, by which he promised, twelve months after the date thereof, for value received, to pay said defendants, John Sexton, Sr., John Sexton, Jr., and Hugh Sexton, under the name of John Sexton & Sons, the sum of fifty-eight hundred and twelve dollars and sixty-eight cents ($5,812.68), which said note is hereto annexed and made part of this petition. Plaintiff states that the said defendants, John Sexton, Sr., John Sexton, Jr., and Hugh Sexton, were, on the 17th day of April, 1860, the day of the execution of said note, copartners in business under the name and style of John Sexton & Sons, and on the said date, and before the maturity of the said note, they endorsed the same; and,...