Slupsky v. Starr

• Citation: 223 S.W. 816
• Decision Date: 15 July 1920
• Docket Number: No. 16113.,16113.
• Parties: SLUPSKY v. STARR et al.
• Court: Missouri Court of Appeals

223 S.W. 816

SLUPSKY v. STARR et al.

No. 16113.

St. Louis Court of Appeals. Missouri.

July 15, 1920.

Appeal from Circuit Court, St. Louis County; S. Hugo Grimm, Judge.

"Not to be officially published."

Suit by Abraham Slupsky against Harry Starr and others. From judgment for defendants, plaintiff appeals. Affirmed.

Chester Krum, of St. Louis, for appellant.

Shepard R. Evans, of St. Louis, for respondents.

BARNES, C.

This suit was instituted to the October term, 1916, of the circuit court, city of St. Louis, and was tried at the October, 1917, term, before the court, a jury having been waived. It is based upon a note reading:

"$2,000.00

"St. Louis, Mo., September 22, 1908.

"On demand, after date, we promise to pay to the order of Sam Mintz, two thousand dollars, for value received, negotiable and payable without default, and with interest at the rate of _____% per annum. Payable in ..........

                                      "[Signed] William Haffner
                                      "[Signed] H. Starr."
                  Indorsement: "Sam Mintz."
                

Plaintiff sued as indorsee of the payee in the note; his petition is in proper form. The answer admits the execution of the note; denied the other allegations of the petition, and for further defense pleaded that neither defendants nor any one in their behalf transferred or delivered the note to the payee, Sam Mintz; that the note was stolen; that plaintiff did not have title to said note; that plaintiff became its holder after maturity; denied that the indorsement upon the note was the signature of the payee; and that defendants were discharged from liability on the note because discharged as bankrupts in bankruptcy in 1914. The reply was a denial of "each and every allegation by way of affirmative defense contained in the answer." The trial resulted in judgment for defendants, from which plaintiff appealed, and properly preserved for review the points urged here.

Respondents filed no brief. Appellant's brief contains no citation of authorities, other than the Negotiable Instruments Act.

The evidence tendered on behalf of plaintiff consisted of the note, which was admitted, and seems to have included the indorsement "Sam Mintz."

Defendants offered testimony tending to show that on its purported date the note was signed by the makers, and left with Henry Seltzer (at the time of the trial manager of the Excelsior Manufacturing Company), to be delivered to the payee upon receipt of the amount therein named. This escrow arrangement took place in the presence of the payee and at Seltzer's home, the reason being that Mintz did not have the money together, and Haffner had to leave the city. Seltzer took the note, put it in an envelope, and placed it in a wardrobe drawer in his house. He never delivered the note to any one. A short while after the note was left with Seltzer, his home was robbed twice in two weeks, and some six months later when he went to get the note it was gone. Sam Mintz, the payee, died two or three years prior to the trial.

Defendant Haffner testified he had not seen the note from the day he signed it until the trial; that the note was in his handwriting and made out in Seltzer's house, and left with Seltzer the same day.

Defendant Starr testified: That about a year and a half before the trial, plaintiff, Slupsky, called him up in the Majestic Hotel; that he did not want to go, but plaintiff insisted that "it was very important," and Starr said, "Why do you not come up here?" he said, "It is very important for your own good." Starr went up, and plaintiff made a date to meet Starr in a saloon. He went to the saloon, and plaintiff was pointed out to him. Slupsky took Starr aside, and what then happened is thus detailed by Starr:

"'My name is Mr. Slupsky,' and he takes off his hat and he said he is such and such a man. He takes me to the side and tells me he just got a check from the Bank of Commerce, and I looked, and he takes out the note and shows me the note.

"Q. Is this the note he showed you? A. Yes, sir; he just looked around him and showed me that note, and I said, `If you got that note somebody ought to go to jail for that note,' and I left him. When I left him he said, `Will you do something, for that note?' I said, `If that note was a little note, I would try to do, but that note if I knew before that man would go to jail for that note.'"

That was the only conversation he had with Slupsky regarding the note.

The following testimony of witness Seltzer was objected to:

"Q. Tell the court how you saw that note and got possession of it? A. Mr. Haffner and Mr. Starr and this man Mintz—Mr. Haffner said to me that they want to make a loan.

"Q. Who said this? A. Mr. Haffner said this to" me: `We are going to make out a note and give it to you, and as soon as Sam Mintz gives you the money you give him the note.' He had to go away, and I was supposed to turn over this note to Mintz and take the money and give it to Haffner. Mintz did not have the money together, and Haffner had to go away for a day or two.

"The Court (Q.): Haffner asked you for the note, and you did not turn it over to him? A. I said I did not get the money, and told him I had the note at home. Time passed on, and a way later on, way later on, I don't remember how much time it was, he asked me again for the note, and I told him it was at home, and as soon as I get a chance I will bring it over to you. Quite a time passed by, and my house was robbed twice within about two weeks—about two weeks after this happened. Finally, maybe five or six months passed by, and so...