State v. Trimble, No. 28710.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRagland
Citation28 S.W.2d 75
Docket NumberNo. 28710.
Decision Date15 May 1930
PartiesSTATE ex rel. OTT v. TRIMBLE et al.
28 S.W.2d 75
STATE ex rel. OTT
TRIMBLE et al.
No. 28710.
Supreme Court of Missouri, in Banc.
May 15, 1930.

Certiorari proceeding by the State, at the relation of Louis L. Ott, against Francis H. Trimble and others, Judges of the Kansas City Court of Appeals, to have quashed a certain opinion.

Writ quashed.

Ira H. Lohman, of Jefferson City, and Virginia J. Booth and James Booth, both of Pacific, for relator.

Irwin & Bushman, of Jefferson City, for respondents.


Certiorari. In this proceeding relator seeks to have quashed the opinion and judgment of the Kansas City Court of Appeals in the case of Louis L. Ott, Appellant, v. W. P. Stone, Respondent, lately pending before said court on appeal from the circuit court of Cole county, on the ground that the rulings of said Court of Appeals conflict with previous decisions of this court. The opinion follows:

"Action against respondent, W. P. Stone and one T. J. Stone, to recover balance due on a promissory note. The judgment in the trial was in favor of respondent W. P. Stone and against T. J. Stone for the amount due on the note.

"The petition alleges that on December 28, 1917, respondent and T. J. Stone for value received executed their promissory note in the sum of $2,447.99 due thirty days after demand, payable to the order of Phillip Ott, and bearing 6 per cent compound interest, payable semi-annually; that the sum of $1,308.68 was paid on said note and credited thereon on February 27, 1919; that Phillip Ott, the payee in said note, died testate in Cole County, Missouri, on September 13, 1918, and by the terms of his will said note was bequeathed to appellant, Louis Ott, who at all times since has been the owner and holder thereof; that demand was made for the payment of said note more than thirty days before the filing of this suit.

"Defendant, T. J. Stone, defaulted. Respondent answered denying any indebtedness whatever to appellant and alleging that his obligation on the note was for a valuable consideration fully paid off and discharged and that for value received appellant agreed to discharge and release him from any and all liability on said note.

"At the trial respondent admitted the execution of the note; that appellant was the owner and holder thereof and that payment thereof was demanded more than thirty days before suit thereon.

"Respondent's evidence is to the effect that respondent and defendant T. J. Stone were partners and engaged in building houses and other construction work in Jefferson City, Missouri; that appellant owned and operated a lumber yard in said city; that his partnership with T. J. Stone was dissolved in the early part of the year 1919; that at the time of this dissolution the partnership owed appellant, in addition to the note in suit, an open account; that at that time respondent was indebted to appellant on individual notes and accounts; that after the dissolution of the partnership appellant and respondent settled and adjusted respondent's indebtedness to appellant; that in said settlement it was verbally agreed by and between appellant and respondent that if respondent would pay his individual indebtedness in full, one-half of the open account which the firm owed and one-half of the note in suit, appellant would release and discharge him from any other or further liability on said notes; that in consummation of said settlement agreement, respondent conveyed to appellant two properties in Jefferson City at the agreed price of $12,200; that the encumbrances on said properties, respondent's individual indebtedness to appellant, one-half of the firm account and one-half of the note in suit amounted to the total sum of $10,799.87; that defendant accepted the deeds to said properties at the agreed price of $12,200 in payment of respondent's indebtedness and paid respondent the difference between that sum and $10,799.87 and gave respondent a receipt which

28 S.W.2d 76

recited that appellant had received from respondent $1,308.68 for one-half principal and one-half interest on Stone and Stone note for $2,447.99; that in the settlement agreement, it was understood that respondent was to continue to buy lumber used in his construction work from appellant.

"Appellant denied that he agreed to release respondent from further liability on the note.

"At the close of the evidence appellant requested the court to instruct the jury to find a verdict for plaintiff. The refusal of this instruction is assigned as error. This contention is presented here on the theory that appellant's renunciation or release of his right against respondent on the note, if made, not being in writing, is ineffectual because violative of section 908 of the Negotiable Instruments Law [Rev. St. 1919]. This section reads:

"`The holder may expressly renounce his rights against any party to the instrument before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.'

"Under the plain terms of this statute, renunciation or release of the rights of a holder against the maker of a negotiable instrument, to be effective, must be in writing. Therefore, if on the record as presented in this court, appellant is in a position to invoke the statute, the verbal agreement of settlement and release testified to by respondent is no defense in this case.

"Respondent insists that at the trial below, appellant did not rely on the statute as a defense, but presents the contention here for the first time. No Missouri cases are cited in brief, and we have found none, which discuss the manner in which this particular statute should be invoked and a defense in a case like the one at bar. However, we do find cases which discuss analogous statutes, and outline the course which should be pursued in order to obtain the benefit of such statutes as a defense. For example, the statute relative to the assignment or surrender of leases reads as follows:

"`No lease ___, shall at any time hereafter be assigned ___ or surrendered unless it be by deed or note in writing, signed by the party so assigning ___ or surrendering same, or their agents lawfully authorized by writing.'

"In the case of Churchill v. Lammers, 60 Mo. App. 244, the petition was in assumpsit on the promise contained in a lease of pay plaintiffs in advance a monthly rent of $225. The defenses interposed by the answer were, first, a surrender by operation of law, and second, an estoppel in pais. A judgment for defendant was affirmed on appeal. Plaintiff contended that evidence of defendant tending to show a verbal agreement for a surrender and acceptance of the premises, was improper, because within the prohibition of the statute. Of this contention, the court said:

"`But by reference to the record it is found that the plaintiffs did not plead the statute, nor object to the introduction of the evidence at the proper time, so that this objection is not available here.'

"In Miller v. Harper, 63 Mo. App. 293, 296, this court, speaking of a like question, said:

"`But the difficulty with defendant's insistence now on the statute of frauds is that the evidence relating to these verbal leases and assignments was all admitted without objection from defendant, either while it was being introduced, or by motion to strike out, or otherwise. This we consider to be a waiver of that defense; it being an affirmative defense which may be waived. (Italics ours.)'

"The statute relative to assignment of leases provides that no leases shall be assigned or surrendered unless it be by deed or note in writing. The negotiable instrument law relative to renunciation of the holder's right against a party to a negotiable instrument, says, `A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.' [Rev. St. 1919, § 908]. These statutes are analogous. One makes a positive declaration that the assignment or surrender of a lease shall be in writing, the other, that a renunciation of the holder's right against a party to a negotiable instrument must be in writing. If as held in the cases cited, in order to invoke the statute relative to the assignments or surrender of leases, as a defense, it is necessary to call the trial court's attention, in some proper manner, to the provisions of the statute, necessarily a party seeking the benefit of the Negotiable Instruments Law here considered, must pursue the same course because the statutes are similar. The provisions of the Negotiable Instruments Law here considered, are in effect, a Statute of Frauds, although not so labeled in Revised Statutes, 1919, and the steps necessary to be taken in order to invoke the Statute of Frauds as a defense to an alleged cause of action, should have been taken in this case in order to obtain the benefit of the statute.

"The record...

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