State Nat. Bank v. Levy

• Decision Date: 07 February 1910
• Citation: 125 S.W. 542,141 Mo. App. 288
• Parties: STATE NAT. BANK v. LEVY.
• Court: Missouri Court of Appeals

125 S.W. 542

141 Mo. App. 288

STATE NAT. BANK v. LEVY.

Kansas City Court of Appeals. Missouri.

February 7, 1910.

1. STATUTES (§ 281)—PLEADING—FOREIGN STATUTES.

Laws of other states must be alleged as any other issue of fact; the pleading stating the substance of the law, and not merely referring to it by number, chapter, and section.

2. STATUTES (§ 281)—PLEADING FOREIGN STATUTES.

A petition on a note made in Oklahoma, alleging that the note was executed and payable there, and was in accord with the laws of that territory, which provide that the parties to a note may contract therein for attorney's fees to be paid by the payor, and that the statutes further provide that interest not exceeding 12 per cent. per annum may be provided for, sufficiently pleaded the substance of the Oklahoma laws with reference to such subject.

3. EVIDENCE (§ 331)—FOREIGN LAWS—EVIDENCE.

A printed volume purporting to contain the Session Laws of Oklahoma, and also purporting to have been published by the state's authority, was admissible to prove the law of that state under Rev. St. 1899, § 3089 (Ann. St. 1906, p. 1771), declaring that a printed volume purporting to contain the laws of a sister state or territory shall be admitted as prima facie evidence of the statutes thereof.

4. EVIDENCE (§ 325)—ACTS OF PUBLIC OFFICIALS —STATUTES.

Rev. St. 1899, c. 25 (Ann. St. 1899, pp. 1770-1788), relating to the evidentiary character of the acts of various public bodies and officials, does not profess to make competent evidence that which before was incompetent.

5. EVIDENCE (§ 318)—PUBLIC ACTS—RECORDS OF CONGRESSIONAL SUBCOMMITTEE—HEARSAY.

Where, in an action on a note, defendant claimed he was induced to sign the same as surety on the representation of the makers and plaintiff's cashier that the proceeds were to be used to purchase a saloon, when, in fact, they were intended to be used by the makers with the knowledge and connivance of plaintiff's cashier to defraud Kickapoo Indians out of their lands, in violation of their treaty rights and of the federal laws, the report of a congressional subcommittee on Indian affairs, appointed to investigate the affairs of such Indians, finding that various persons, including plaintiff's cashier, secured a pretended title to Indian lands by violence, corruption, fraud, forgery, etc., was hearsay and inadmissible to prove a fraudulent intent on the part of the makers of the note.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by the State National Bank against Hugo Levy. Judgment for plaintiff, and defendant appeals. Affirmed.

Eppstein, Ulmann & Miller, for appellant. Thompson, Stanley & Price, for respondent.

JOHNSON, J.

Plaintiff, an incorporated bank doing business in Shawnee, Okl., brought suit in the circuit court of Jackson county against John Garrett, Charles McKnight, and Hugo Levy on a promissory note. Garrett and McKnight were not served with summons, and at the commencement of the trial were dismissed from the suit, and the trial proceeded against the remaining defendant, Levy, resulting in a verdict directed against him for the principal of the note and accrued interest. After unsuccessfully moving for a new trial and in arrest of judgment, he brought the case here by appeal.

The note in controversy was executed and delivered by the defendants in Shawnee, Okl., where it was made payable. It is negotiable in form, is dated December 17, 1906, and by its terms defendants, whose signatures appear on the face, promise to pay to the order of plaintiff, 30 days after date, the sum of $1,500, with interest from maturity at the rate of 12 per cent. per annum. Defendant Levy admits in his answer that he signed the note, but alleges that he signed as surety for his co-makers, Garrett and McKnight; that plaintiff, through its cashier and agent, Willard T. Johnston, knew that he signed the note as surety, and that his signature was procured by means of a fraudulent and corrupt conspiracy between said Johnston, Garrett, and McKnight. Plainly and briefly stated, the fraud Levy claims was practiced on him is as follows: Garrett and McKnight were the owners of several saloons in Shawnee, and were customers of Levy, a wholesale liquor dealer at Kansas City. Representing that they desired to buy another saloon, Garrett and McKnight induced Levy to become surety on their note to the bank for $1,500, the amount of the represented purchase price. Instead of intending to use the money as represented, they proposed using it to defraud Kickapoo Indians out of their lands in violation of treaty rights and of federal laws. Johnston not only was privy to this purpose and scheme, but inspired it. Acting for himself, he had already swindled the Indians out of large tracts of land of great value. Some time after the note was executed, rumors of these and other Indian land frauds became current, and Levy learned for the first time that Johnston, Garrett, and McKnight were implicated. Investigation led to the discovery that the note in controversy had...