State Bank of Anderson v. Dunn

• Decision Date: 11 June 1930
• Docket Number: 28852
• Citation: State Bank of Anderson v. Dunn, 325 Mo. 709, 29 S.W.2d 79 (Mo. 1930)
• Parties: State Bank of Anderson v. Jennie Dunn, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 79

325 Mo. 709

State Bank of Anderson v. Jennie Dunn, Appellant

No. 28852

Supreme Court of Missouri

June 11, 1930

Appeal from Newton Circuit Court; Hon. Charles L. Henson Judge.

Reversed and remanded.

Horace Ruark for appellant.

(1) The burden was upon the plaintiff to prove that the deceased executed the note. This was denied and not admitted in the answer, and without such proof no recovery could be had against the defendant. Secs. 1415, 1416, R. S. 1919; Julian v. Rogers, 87 Mo. 229; Courtney's Estate v. Lanznar's Estate, 296 S.W. 269. Even had no objection been made to the introduction of the note there would be a complete failure to prove an essential fact alleged, but not proven by the plaintiff, viz: the execution of the note. And a finding for the plaintiff in the face of the want or lack of such proof cannot stand, where the question is preserved in the motion for new trial. In re Lankford's Estate, 272 Mo. 1; McMillian & Parker v. Milling Co., 190 Mo.App. 340; State ex rel. v Guinotte, 156 Mo. 521. (2) The demand note by its terms bore interest from maturity, that is, from the time a demand for payment was made. This is the terms of the contract and the trial court erred in computing interest from the date of the execution of the note, amounting to $ 5,202, without proof of a demand. Rosenberger v. Pacific Express Co., 129 Mo.App. 105. The word maturity "as applied to commercial paper means the time when the paper becomes due and demandable." 39 C. J. 1391.

OPINION

Walker, J.

This is an action brought by the State Bank of Anderson against Jennie Dunn, as administratrix of the estate of B. S. Dunn, deceased, in the Circuit Court of McDonald County, and tried in the Circuit Court of Newton County, at the February term, 1927, on a change of venue.

The suit is upon a note, purporting to have been executed by B. S. Dunn, bearing date of January 3, 1921, whereby he promised to pay to the order of the State Bank of Anderson on demand, the sum of $ 8517.41, with interest from maturity at the rate of eight per cent per annum, compounded. The petition is in the ordinary form, a copy of the note being filed therewith. The answer is a general denial, and an allegation by the administratrix that she has no knowledge whether or not the deceased signed the note, and that the same has never been presented to her, and if any such note was signed by the deceased it was without consideration.

Upon a trial to the court, a jury being waived, the plaintiff, without proof of its execution, offered the note in evidence. The court overruled the defendant's objection that there was no proof of the execution of the note. Thereupon both parties rested and the court entered judgment upon the note in the sum of $ 13,728, principal and interest, from which judgment the administratrix appealed to this court. There was no proof of any demand of payment, nor of any other character, except the tender of the note.

The appellant raises two questions of alleged error:

First That it was incumbent upon respondent to prove the execution of the note by the deceased, and in the absence of such proof no finding in favor of the respondent could be...