State Bank of Sarcoxie v. Harp

• Citation: 282 S.W. 737
• Decision Date: 22 April 1926
• Docket Number: No. 3902.,3902.
• Parties: STATE BANK OF SARCOXIE v. HARP et ux.
• Court: Court of Appeal of Missouri (US)

282 S.W. 737

STATE BANK OF SARCOXIE v. HARP et ux.

No. 3902.

Springfield Court of Appeals. Missouri.

April 22, 1926.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by the State Bank of Sarcoxie against K. S. Harp and wife. Judgment for plaintiff against the defendant named, and for Mrs. K. S. Harp. Plaintiff appeals from the latter judgment. Affirmed.

Howard Gray, of Carthage, for appellant.

McReynolds, McReynolds & Flanigan, of Carthage, for respondents.

BRADLEY, J.

This is a suit on a promissory note. On trial below before the court and a jury, verdict and judgment went for plaintiff against defendant K. S. Harp and in favor of defendant Mrs. K. S. Harp. Failing to get a new trial on motion, plaintiff appealed from the judgment in, favor of Mrs. Harp.

December 14, 1920, and January 5, 1921, defendant K. S. Harp gave to the Industrial Transportation Company his two notes in the sum of $250, each due, respectively, in six months. Thereafter and before maturity of said notes plaintiff bank purchased them from the Industrial Transportation Company, making the purchase from and through one W. T. Sharp who was representing the said transportation company in and about Sarcoxie in the sale of stock. These two notes were renewed by a note given directly to plaintiff bank. Defendant K. S. Harp testified that the note sued on is the only renewal note given, while the plaintiff contends, as we understand the evidence of RS president, Sabert, that the note sued on is the third renewal note given. Mrs. Harp did not sign the original note given to the Industrial Transportation Company, and denied signing any note, except the note sued on. The plaintiff bank contends, however, that Mrs. Harp signed the second and third of these renewal notes.

Defendant K. S. Harp pleaded as a defense the equities existing between him and the Industrial Transportation Company. Mrs. Harp also pleaded these equities, and in addition pleaded that she did not sign the note sued on until after it had been signed by her husband and delivered to and' accepted by plaintiff bank, and that as to her there was a total failure of consideration. Defendant K. S. Harp contended that he gave the two original notes of $250 each to the Industrial Transportation Company for stock in said company, and that it was the agreement between him and Sharp, the agent of said company, that unless the said transportation company established a store at Sarcoxie by January 1, 1921, his notes were to be returned to him. The Industrial Transportation Company went into the hands of a receiver, and the store was not put in at Sarcoxie. Defendant K. S. Harp contends that plaintiff had knowledge of all the facts and knew, when it purchased his notes, of the agreement between him (K. S. Harp) and the agent Sharp. The court gave a peremptory direction to find in favor of plaintiff as to defendant K. S. Harp, and such was the verdict upon which judgment was entered. Defendant K. S. Harp did not appeal; hence we need not consider further as to him, except as his defense may be concerned or connected with the defense of his codefendant, Mrs. Harp.

At plaintiff's request the court gave these instructions:

"The court instructs the jury that, if you find from the evidence in this case that in October, 1921, the defendants gave a new note to take up a previous note which the defendant K. S. Harp had given to the plaintiff, anal thereafter the defendants executed and delivered the note sued on as a renewal of or to take the place of said October note, then you will find a verdict in favor of the plaintiff and against both of the defendants in the sum specified in instruction No. 1.

"The court instructs the jury...