State ex rel. Shipman v. Allen

• Decision Date: 16 April 1907
• Citation: 103 S.W. 1090,124 Mo.App. 465
• Parties: STATE ex rel. SHIPMAN, Respondent, v. ALLEN et al., Appellants
• Court: Missouri Court of Appeals

103 S.W. 1090

124 Mo.App. 465

STATE ex rel. SHIPMAN, Respondent, v. ALLEN et al., Appellants

Court of Appeals of Missouri, St. Louis

April 16, 1907

Appeal from Lawrence Circuit Court.--Hon. F. C. Johnston, Judge.

REVERSED AND REMANDED.

STATEMENT.--Action on attachment bond. Verdict and judgment for plaintiff for $ 400, from which defendants appealed. The facts are, in 1901 defendants brought suit by attachment against plaintiff herein, in the Lawrence Circuit Court, alleging in their affidavit for the attachment, that Shipman was a non-resident of the State of Missouri, and had absconded and absented himself from his usual place of abode in this State, so that the ordinary process of law could not be served upon him. On the filing of the affidavit and the approval of the attachment bond, a writ of attachment was issued and served by attaching and levying upon certain real estate in the county of Lawrence, as the property of Shipman. Shipman appeared to the action, employed counsel and filed a plea in abatement of the attachment, which plea was tried, resulting in a verdict and judgment for Shipman, which judgment was affirmed on appeal by this court. The present action is on the bond to recover the cost and expenses, value of time and reasonable attorney's fees in the defense of the attachment. The evidence tends to prove that reasonable attorney's fees and other costs and expenses to Shipman in the defense of the attachment, aggregated from four to five hundred dollars. Defendants pleaded as a set-off, two promissory notes, one for $ 450, dated May 15, 1893, payable to Allen, Stark & Co., due six months after date and signed by J. N. Scott, J. A. White, W. S. White and J. W. Shipman and indorsed on the back by W. H. Smith. The other note was for the same amount, payable to the same payees and dated November 15, 1893, due three months after date and signed by W. S. White, George Davis, George Messick, and J. W. Shipman. Three payments were indorsed on the back of this note: One July 18, 1895, for $ 32.50; one November 7, 1895, for $ 11 and one May 4, 1896, for $ 38. The reply, as a defense to the first note, alleged in substance, first, that it was barred by the ten-year Statute of Limitations; second, that it had been paid; and third, that Shipman signed the note for the accommodation of and as surety for J. A. White, and that after the note had been executed and delivered to the payees they, without his knowledge and consent, procured Smith to indorse it. As a defense to the second note, the reply alleged, in substance, that Shipman signed it with the understanding and on condition that it should not be delivered, or become binding as a promissory note, unless signed by W. S. White and J. N. Scott; that the payees were informed of this fact before the note was delivered to them but nevertheless accepted the note. On the trial the set-off pleaded on the second note was abandoned. In respect to the first note, the evidence shows that L. L. L. Allen, J. F. Stark, A. Forsythe and J. Forsythe composed the firm of Allen, Stark & Co., and that L. L. Allen was the active business manager of the firm. In 1893 the firm sold a crusher to W. S. White, for the purchase price of which the note of May 15, 1893, was given. A short time after its execution and delivery to the payee, at the request of Allen, W. H. Smith wrote his name across the back of the note, without the knowledge or consent of Shipman. When this note matured, White applied to Allen for the privilege of renewing it. Allen agreed that the note might be renewed for three months, but requested White to get George Davis to sign it. White testified that he got George Davis, Shipman and Messick to sign the note and then took it to Allen to show him that he had Davis' name upon the note. Allen took the note, looked at it and said "it is good enough." White also testified as follows:

"Q. What did you tell him? A. I told him I had agreed to have the other parties on it that was on the old note. He said it was 'good enough.'

"Q. He kept it? A. Yes, sir.

"Q. You wanted to take it back with you? A. Yes, sir; I wanted to go ahead and fix it up.

"Q. You objected to him keeping it? A. I wanted to get the parties I had agreed to on it."

Allen did not surrender up the old note to White; but in his deposition taken in another suit, he testified that he took the renewal note in payment and satisfaction of the first one, marked it "paid" across its face and filed it away; that after giving his deposition, he found the two notes pinned together and kept them but did not know whether the old note was marked "paid" or not. From the evidence it is inferable that there is a slight evidence of some mark on the face of the note, perhaps made in pencil, but so dim as to be illegible. Allen testified that no payments were ever made on either of the notes, other than those indorsed on the back of the renewal note. After Shipman learned that Smith had indorsed the note, he at all times denied any liability thereon and neither made or consented that any payments should be made or indorsed on either of the said notes. There was some evidence tending to prove that Shipman, with his family moved from his home in Lawrence county to Tulsa, Indian Territory, and remained there until 1905, when he moved back to his farm in Lawrence county. A portion of this time he was on the Townsite Commission to appraise town lots in Indian Territory, and at the same time had an interest in crops cultivated in Indian Territory by his sons.

Judgment reversed and cause remanded.

R. H. Davis and W. Cloud for appellants.

(1) The ruling of the court on motion of L. L. L. Allen and J. Forsythe, requesting that they be permitted to enter their voluntary appearance and be made parties defendant, was properly sustained. State ex rel. v. Hudson, 86 Mo.App. 512; Green v. Conrad, 114 Mo. 665. (2) Instruction numbered 1 given on behalf of relator is erroneous in that: (a) The damages are not limited to securing a dissolution of the attachment. State ex rel. v. Fargo, 151 Mo. 280; Fry v. Estes, 52 Mo.App. 6. (b) Before traveling expenses can be recovered, it must be shown that they were necessarily incurred. State ex rel., 16 Mo.App. 478. (c) Counsel fees connot be recovered unless it is shown that a fee was paid, or contracted to be paid, and that it was reasonable. Shultz v. Morison, 3 Metc. (Ky.) 98. (3) Instruction numbered 8, requested by defendants, should have been given, and instruction numbered 4, given at the request of relator, should have been refused. It is a well-established rule of law that one who, at the request of the payee or holder and after delivery by the maker, writes his name across the back of a note is a guarantor and not a maker. Stagg v. Linnenfelser, 59 Mo. 342; Burnham v. Gosnell, 47 Mo.App. 638; Cobyn v. Brokmeyer, 84 Mo.App. 649; Hill v. Combs, 92 Mo.App. 242; Adams v. Huggins, 73 Mo.App. 143; Adams v. Huggins, 78 Mo.App. 222. (4) And the signing of a note on the back thereof after it has been delivered to the payee does not amount to an alteration. Moore v. Bank, 22 Mo.App. 684. (5) Instruction numbered 3, given at the request of relator, should have been refused, and instructions numbered 2, 5, 6, and 7, requested by defendants, should have been given. The taking of the note, dated November 15, 1893, did not amount to a payment of the note sued on, being note dated May 15, 1893; unless it was so expressly agreed by the parties at the time. Appleton v. Kennon, 19 Mo. 637; Bank v. Peterman, 21 Mo.App. 512; Leabo v. Goode, 67 Mo. 126; Powell v. Charless' Admrs., 34 Mo. 485; Commiskey v. McPike, 20 Mo.App. 82; Shotwell v. Munroe, 42 Mo.App. 669; State ex rel. v. Wagers, 47 Mo.App. 431. (6) Instructions numbered 3 and 4, prayed by defendants, should have been given and instruction numbered 2, given at the request of relator, should have been refused. R. S. 1899, sec. 4282; Orr v. Wilmarth, 95 Mo. 216; Santer v. Leveridge, 103 Mo. 621. (7) Flying visits, after change of residence, will not stop the running of the exception. Johnson v. Smith, 43 Mo. 501; Rhodes v. Farish, 16 Mo.App. 437.

R. H. Landrum and William B. Skinner for respondent.

(1) The measure of damages in an action on an attachment bond, where the attachment has been defeated and where the facts are as disclosed by the record in this cause, is money expended by relator in traveling expenses and hotel bills, laid out in attending and preparing for trial of such attachment reasonable compensation for relator's time and such reasonable attorney's fees as may appear from the evidence, was needful and necessary in defending such attachment. Kelly v. Beauchamp, 59 Mo. 178. (2) A debt due a partnership cannot be set off against a debt by an individual partner. Weill v. Jones, 70 Mo. 561; Lamb v. Broloski, 38 Mo. 51; R. S. 1899, sec. 543; Boyer v. Hamilton, 21 Mo.App. 521; Kortjohn v. Seimers, 29 Mo.App. 276; Browning v. Hilig, 69 Mo.App. 594. (3) "The addition of the name of another party to a note, by a party in interest, after it has been executed will release the other parties to the note, and this is especially true as to a surety on the note." Higgins v. Harvester Co., 181 Mo. 309; Bank v. Frick, 75 Mo. 180; Hord v. Taubman, 79 Mo. 102; Lunt v. Silver, 5 Mo.App. 186. (5) Whether or not the note executed by relator, as surety for W. S. White, dated May 15, 1893, was paid, by agreement between said W. S. White and L. L. Allen, with the note dated November 15, 1893, and the first named note cancelled by said Allen, was a question of fact for the jury, under proper instructions. Hayden v. Luffenburger, 157 Mo. 88; Block v. Dorman, 51 Mo. 31; Powell v. Charless' Admr., 34 Mo. 485. (6) The rule of law is well settled in this State that in order...