State v. Korte

• Decision Date: 05 February 1929
• Docket Number: No. 20393.,20393.
• Citation: 13 S.W.2d 558
• Parties: STATE ex rel. and to Use of Schaefer v. KORTE et al.
• Court: Missouri Court of Appeals

13 S.W.2d 558

STATE ex rel. and to Use of Schaefer v. KORTE et al.

No. 20393.

St. Louis Court of Appeals. Missouri.

February 5, 1929.

Rehearing Denied February 19, 1929.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

"Not to be officially published."

Action by the State, at the relation and to the use of Amelia Schaefer, against Francis J. Korte and the Southern Surety Company. Judgment for plaintiff, and defendant last named appeals. Affirmed.

McLaran & Garesche and E. H. Wayman, all of St. Louis, for appellant.

Salkey & Jones, of St. Louis, for respondent.

SUTTON, C.

This is an action on the bond of a notary public to recover damages resulting to relator by reason of false certificates of acknowledgment of deeds of trust made by the notary. The trial, with a jury, resulted in a judgment for relator for $5,000, and the defendant Southern Surety Company appeals.

The bond sued on was executed by defendant Francis J. Korte, as principal, and by appellant, as surety, in the sum of $5,000, and is conditioned that said Korte shall faithfully perform the duties of the office of notary public according to law.

On February 20, 1924, Paul Yaeger and Maud I. Yaeger, his wife, owned and possessed certain residence property in the city of St. Louis, known as 3735 Maffitt avenue. On that day defendant Korte certified that he had taken the acknowledgment of Paul Yaeger and Maud I. Yaeger, his wife, to a deed of trust purporting to convey said property to Henry J. Korte, as trustee, to secure the payment of a principal note for $3,000, made payable three years after date to the order of A. E. Elsner, named as the beneficiary in the deed of trust, and six semiannual interest notes, each for $90. All the notes and the deed of trust purport to be executed by Paul Yaeger and Maud I. Yaeger, his wife. It was shown, however, that they did not execute the notes, nor execute or acknowledge the deed of trust.

On October 5, 1923, N. B. Bilinsky and Anna Bilinsky, his wife, owned and possessed certain residence property in the city of St. Louis, known as 4649 Newberry terrace. On that day defendant Korte certified that he had taken the acknowledgment of N. B. Bilinsky and Anna Bilinsky, his wife, to a deed of trust purporting to convey said property to Henry J. Korte, as trustee, to secure the payment of a principal note for the sum of $4,000, made payable three years after date to the order of A. E. Elsner, named as beneficiary in the deed of trust, and six semiannual interest notes, each for $120. All of said notes and said deed of trust purport to be executed by N. B. Bilinsky and Anna Bilinsky, his wife. It was shown, however, that they did not execute the notes nor execute or acknowledge the deed of trust.

The evidence shows that the Yaeger property was worth $7,000 and that the Bilinsky property was worth $8,000.

Defendant Korte was connected with the Korte Realty & Loan Company, doing business in the city of St. Louis. Relator purchased the notes and deeds of trust above described from defendant Korte, and paid him $3,048 for the Yaeger notes and deed of trust, and $4,088.67 for the Bilinsky notes and deed of trust, which were the face amounts of the principal notes, with accrued interest. She purchased the notes and deeds of trust in reliance upon the false certificates of acknowledgment made by defendant Korte as notary public. The notes bore the qualified indorsements of the payee, A. E. Elsner. They were not indorsed by defendant Korte, or the Korte Realty & Loan Company, with which he was connected. Whether defendant Korte acted as agent of A. E. Elsner, the payee in the notes, or as owner of the notes, in negotiating the sale thereof to relator, or what he did with the money he received from relator, whether he turned it over to Elsner, or to the company with which he was connected, or appropriated it to his own use, does not appear.

At the conclusion of all the evidence, appellant requested an instruction that relator was entitled to recover nominal damages only. The refusal of this instruction is assigned as reversible error here. The assignment is based on the contention that the Korte Realty & Loan Company was a copartnership, composed of Henry J. Korte and Francis J. Korte; that both members of the firm were liable to relator for what she paid for the notes and deeds of trust, for fraud practiced upon her by defendant Korte in the sale of the notes and deeds of trust to her; that it was not shown that relator had pursued her remedy against these parties, or that such pursuit would have been...