Simpson v. Laningham
| Decision Date | 09 February 1916 |
| Citation | 183 S.W. 324,267 Mo. 286 |
| Parties | J. C. SIMPSON, Appellant, v. O. L. VAN LANINGHAM |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. W. A. Powell, Judge.
Affirmed.
Robinson & Goodrich for appellant.
(1) The existence of the guaranty, even if the cashier had knowledge thereof at the time the bank purchased the note, constituted no defense to this action. Jennings v. Todd, 118 Mo 305; Miller v. Altsway, 81 Mich. 196; Adams v Smith, 35 Me. 324; Dow v. Tuttle, 4 Mass. 414; Davis v. McCurdy, 17 N.Y. 230; R. S. 1909, secs 10022, 10024, 10025. (2) The court committed error in admitting in evidence defendant's testimony as to conversations he had had with, and statements made to, other persons, not parties to this suit, in regard to the guaranty given him by the Refrigerating Company and J. E. Brady, and in regard to the bank cashier's knowledge of said guaranty. (a) They were simply self-serving declarations of the defendant, not made in the presence of his adversary. Milliken v. Green, 5 Mo. 489; Gordon v. Klapp, 38 Ala. 357; Nicholson v. Tarply, 70 Cal. 608; Williams v. English, 64 Ga. 546; Adams Express Co. v. Boskowitz, 107 Ill. 660; Handley v. Cal., 30 Me. 9; Neisbaum v. Thompson, 11 Md. 557; Kehrig v. Peters, 41 Mich. 475; Cain v. Cain, 140 Pa. St. 144. A party's own statements, not made in the presence of his adversary, are not admissible in his own favor. McLean v. Rutherford, 8 Mo. 109; Teller v. Patten, 61 U.S. 125; Alexander v. Handley, 96 Ala. 220; Rogers v. Schulenberg, 111 Cal. 281; Alston v. Grantham, 26 Ga. 374; Cotton v. Holliday, 59 Ill. 176; Corbel v. Beard, 92 Iowa 360; Talbott v. Talbott, 25 Ky. 3; Boston v. Worcester, 67 Mass. 83; Griffin v. Bristle, 39 Minn. 456; Howard v. Hunt, 57 N.H. 467; Moody v. Gardner, 42 Tex. 411; McKesson v. Sherman, 51 Wis. 303. (b) Said conversation were hearsay evidence, and therefore not admissible. Chouteau v. Searcy, 8 Mo. 733; Atkisson v. Castle Garden, 28 Mo. 124; Coble v. McDaniel, 33 Mo. 363; O'Neil v. Crain, 67 Mo. 250; Fougue v. Burgess, 71 Mo. 389; St. Louis v. Arnett, 94 Mo. 275; State v. Sibley, 131 Mo. 530; Gordon v. Burris, 141 Mo. 611; Allen v. Transit Co., 183 Mo. 437; Bevis v. Railroad, 26 Mo.App. 19; Love v. Love, 98 Mo.App. 509; 16 Cyc. 1200; 11 Am. & Eng. Ency. Law, p. 520. (c) Moreover, said conversations and statements were wholly irrelevant to any issue in the case, and for that reason inadmissible. Irrelevant testimony is never admissible. 1 Greenleaf on Ev., secs. 50, 52 and 448; Eddy v. Baldwin, 32 Mo. 369; Ferguson v. Thatcher, 79 Mo. 511; Frederick v. Allgaier, 88 Mo. 598; State v. Blunt, 91 Mo. 503; Mathias v. O'Neill, 94 Mo. 520; Carlin v. Bank, 86 Mo.App. 592; Bank v. Bank, 64 Mo.App. 253; Thompson v. Bowie, 4 Wall. 463; Whitelaw v. Whitelaw, 96 Va. 712. (3) Defendant's instruction authorized the jury to return a verdict for defendant without finding a performance on his part of the conditions necessary to entitle him to the benefit of the guaranty given him by J. E. Brady and the Refrigerating Company.
William Thomson and D. C. Payne for respondent.
Plaintiff cannot recover in this action. (a) Plaintiff is not a holder in due course. R. S. 1909, secs. 10022, 10024, 10025, 10026. (b) A trustee cannot delegate his power. Cassady v. Wallace, 102 Mo. 575; Garesche v. Inv. Co., 146 Mo. 436; Bailes v. Perry, 51 Mo. 449; Graham v. King, 50 Mo. 22. (c) One buying commercial paper after maturity takes it subject to equities. (d) Equities between maker and payee brought to actual knowledge of indorsee of negotiable note before his purchase of same before maturity, defeats recovery. Johnson v. Machinery Co., 144 Mo.App. 436; Bank v. Brisch, 154 Mo.App. 631; Bank v. Salmon, 117 Mo.App. 506; Bank v. Reeper, 121 Mo.App. 688; Bank v. Ornsdorff, 126 Mo.App. 654; 7 Cyc. 947-949-956. (e) When a collateral and contemporaneous agreement, forming a whole or a part of the consideration on the part of the payee of a negotiable instrument, has been breached by the payee and actual knowledge of such breach has been given to an indorsee who takes before maturity, such knowledge will defeat recovery in the hands of such indorsee. Bank v. Ornsdorff, 126 Mo.App. 654; Hunter v. Johnson, 119 Mo.App. 487; Jennings v. Todd, 118 Mo. 296; Studebaker Mfg. Co. v. Dickson, 70 Mo. 272; Davis v. McCready, 17 N.Y. 230; R. S. 1909, secs. 10022-10024, 10025, 10026, 10028. (f) Where one of the parties to a contract, either before the time for performance or in the course of performance, makes performance or further performance by him impossible, the other party is discharged and may sue at once for the breach. Wolf v. Marsh, 54 Cal. 228; Miller v. Ward, 2 Conn. 494; Dare v. Spencer, 5 Blackf. 491; Crabtree v. Messersmith, 19 Iowa 179; Jones v. Walker, 13 B. Mon. 163, 56 Am. Dec. 557; Bassett v. Bassett, 55 Me. 127; Tel. Co. v. Semmes, 73 Md. 9; Grice v. Noble, 59 Mich. 515; Bolles v. Sachs, 37 Minn. 315; Hammer v. Breidenbach, 31 Mo. 29; Crump v. Mead, 3 Mo. 233; Clendennen v. Paulsel, 3 Mo. 230; Gibson v. Whip Pub. Co., 28 Mo.App. 450; True v. Bryant, 32 N.H. 241; Wollner v. Hill, 93 N.Y. 576; Nav. Co. v. Wilcox, 52 N.C. 481; Camp v. Barker, 21 Vt. 469; Hinckley v. Steel Co., 121 U.S. 264. (g) Courts incline strongly against the construction of promises as independent, and if possible they will be held to be concurrent or dependent so that a breach by one party will discharge the other. Larimore v. Tyler, 88 Mo. 661; Turner v. Mellier, 59 Mo. 526; Caldwell v. Dickson, 26 Mo. 60; Denny v. Kile, 16 Mo. 450; Randolph v. Frick, 57 Mo.App. 400; Billups v. Daggs, 38 Mo.App. 367; Kirkland v. Oates, 25 Ala. 465; Haney v. Caldwell, 43 Ark. 184; Peasley v. Hart, 65 Cal. 522; Smith v. Lewis, 24 Conn. 624, 63 Am. Dec. 180; Houston v. Spruance, 4 Harr. 117 (Del.); Clark v. Weis, 87 Ill. 438, 29 Am. Rep. 60; Harshman v. Heavilon, 95 Ind. 147; White v. Day, 56 Iowa 248; Water Co. v. Winfield, 51 Kan. 104; Foster v. Watson, 16 B. Mon. 377; Golding v. Petit, 20 La. Ann. 505; Williams v. Hagar, 50 Me. 9; Coates v. Sangston, 5 Md. 121; Gates v. Ryan, 115 Mass. 596; Fultz v. House, 6 Sm. & M. (Miss.) 404; Railroad v. Cochran, 42 Neb. 531; Elliott v. Heath, 14 N.H. 131; Shinn v. Roberts, 20 N. J. L. 435, 43 Am. Dec. 636; Duffield v. Johnston, 96 N.Y. 369; Ducker v. Cochrane, 92 N.C. 597; Mehurin v. Stone, 37 Ohio St. 49; Becker's Estate, 166 Pa. St. 313; Hood v. Raines, 19 Tex. 400; Faulkner v. Hebard, 26 Vt. 452; Lowber v. Bangs, 2 Wall. 728, 17 L.Ed. 442. (h) No one claiming by virtue of the title which was obtained in said notes by the National Bank of Commerce can recover. Jacobs v. Mitchell, 46 Ohio St. 601; Lancaster v. Callins, 7 F. 338; Rogers v. Smith, 47 N.Y. 324.
OPINION
In Banc.
-- From a judgment in the Jackson Circuit Court in a suit on two notes for $ 5000, plaintiff appeals.
Plaintiff sues merely as an assignee for collection purposes. The notes sued on were negotiable in form, dated September 17, 1907, and payable at the National Bank of Commerce of Kansas City, six months after date. Each was signed by defendant and was payable to himself or order.
There was evidence that these notes were executed in consideration of the purchase or proposed purchase by defendant of one hundred shares of the stock of the Merchants' Refrigerator Company, of which J. E. Brady was president. The stock of this last-named company had been increased, and Brady desired to dispose of some of this increase to defendant. There was evidence defendant was a reluctant buyer, but was persuaded by Brady and the cashier of the National Bank of Commerce to yield, and the result was defendant executed the notes in suit, payable to himself, indorsed them in blank and delivered them to Brady for his company, attaching to each note as collateral, fifty shares of the stock of the company contemporaneously issued to him, having indorsed the certificate of stock in blank. As a part of the same transaction the Refrigerator Company and Brady executed and, simultaneously with the delivery of the notes, delivered to defendant a contract in writing as follows:
The Great Western Life Insurance Co.
Office of President. Kansas City, Mo. 9-16-1907
Mr. O. L. Van Laningham, City.
Dear Sir:
You have this day purchased of the Merchants' Refrigerator Company 100 shares of the capital stock represented by certificates Nos. 134 and 135 for 50 shares each for which you have given two notes of $ 5000 each in settlement due in six months.
This statement is for the purpose of guaranteeing to you that at the maturity of said notes you may, at your option, surrender the stock and if you do surrender said stock, we jointly and severally agree to cancel and return to you your two notes of $ 5000 each upon the delivery to us of said stock.
Merchants Refrigerator Co.
By J. E. Brady, Pres.
J. E. Brady.
The answer to each count set up this agreement and averred it was part of the consideration of the notes sued on.
A few days after the notes were executed and delivered and the contract delivered to defendant, Brady and the Refrigerator Company transferred the notes by delivery only and for value to the National Bank of Commerce. There is evidence the bank had full notice of the contract or agreement delivered to defendant and, in fact, that the bank's cashier assisted in formulating the agreement set out and participated in the negotiations out of which it and the notes grew.
The bank subsequently went into the hands of a receiver, who sold the notes in suit, after maturity, with a multitude of others, to the Terrace City Realty Company and Dr. Woods, who jointly authorized plaintiff to collect them by this suit.
Plaintiff...
To continue reading
Request your trial