State v. Webber

• Decision Date: 19 January 1914
• Citation: 177 Mo. App. 60,164 S.W. 184
• Parties: STATE ex rel. GARDNER v. WEBBER et al.
• Court: Missouri Court of Appeals

164 S.W. 184

177 Mo. App. 60

STATE ex rel. GARDNER v. WEBBER et al.

Kansas City Court of Appeals. Missouri.

January 19, 1914.

On Motion for Rehearing, February 16, 1914.

1. PLEADING (§ 34)—RULE OF STRICT CONSTRUCTION —APPLICATION.

The rule that, in the construction of a petition, nothing will be assumed in favor of the pleader which has not been averred, applies only where the pleading is attacked by demurrer.

2. PLEADING (§ 34)—CONSTRUCTION—AFTER ANSWER OR VERDICT.

After defendant by answering to the merits has accepted the petition as stating a good cause of action, and especially after verdict for plaintiff, the rule of strict construction is superseded by the contrary rule, and every reasonable inference and intendment will aid the petition.

3. PLEADING (§ 433)—OBJECTION—TIME.

The objection that a petition wholly fails to state a cause of action may be offered at any stage of the proceeding; but, if withheld until after verdict, to be available it must go to the entire sufficiency of the petition to state a cause of action, and cannot avail where it states a cause of action which is merely indefinite and imperfect in some of its averments.

4. PLEADING (§ 433)—SUFFICIENCY OF PETITION —VERDICT.

Where the petition is capable of being amended and the imperfectly pleaded cause is sufficient to bar another action for the same cause, the petition will be held good after verdict.

5. NOTARIES (§ 11)—LIABILITY ON BOND.

Under a notary's bond to faithfully execute the duties of his office, the law requires him to exercise a reasonable care against being led into making a false certificate, and, where he has no acquaintance with the affiant, his failure, whether negligent or willful, before certifying to his identity, to require reasonable proof thereof, is a breach of his bond, and allegation and proof of injury from a false certificate

casts on him the burden of showing that he acted innocently and with reasonable diligence.

6. NOTARIES (§ 10)—NEGLIGENCE OR MISCONDUCT —PROXIMATE CAUSE.

Where one applying for a loan forged deeds to certain property, and, on being required to procure affidavits from certain parties showing title by adverse possession, presented affidavits bearing the forged signatures of such parties and also a notary's certificate, such affidavits, though containing no misrepresentations as to title, were necessary to obtain the loan, and hence the notary's breach of duty was the direct cause of the resulting loss to the lender.

7. NOTARIES (§ 11)—LIABILITY ON BOND— RELIANCE.

A petition, in an action on a notary's bond, alleging that the affidavits certified by the notary were taken on a certain day and that relator's loan was previously made, was explained by the positive averment that the affidavits were delivered to relator before he loaned the money and that without them he would not have made the loan.

8. PLEADING (§§ 243, 406)—DEFECT—WAIVER.

In an action on a notary's bond to recover loss on a loan on land resulting from his certificate to false affidavits, any defect in not alleging the value of the land could have been cured by amendment, and was therefore waived by answer.

9. NOTARIES (§ 10)—NEGLIGENCE—ANTICIPATION OF INJURY.

Affidavits showing title by adverse possession being commonly used either to effect a sale of land or to procure a loan upon it, a notary should have anticipated such use of his false certificates to such affidavits.

On Motion for Rehearing.

10. NOTARIES (§ 11) — ACTION ON BOND — PLEADING RELIANCE ON FALSE CERTIFICATES.

In an action on a notary's bond for damages resulting from a loan made upon false certificates to affidavits of adverse possession, relator must show not only that a false certificate was made, but that he relied on it and would not have made the loan without it.

11. PLEADING (§ 8)—FACTS OR CONCLUSIONS.

In an action on a notary's bond, an allegation that relator, at the time of making a loan, relied upon the certificate and accepted as genuine affidavits of the purported affiants, was not a conclusion of law but the statement of a fact so as to raise an issue thereon.

Error to Circuit Court, Adair County; Samuel Davis, Special Judge.

Action by the State of Missouri, on relation of Charles C. Gardner, against Oscar H. Webber and another. Judgment for plaintiff, and defendants bring error. Affirmed.

John T. Barker, Atty. Gen., and Higbee & Mills, of Kirksville, for plaintiffs in error. C. E. Murrell and Campbell & Ellison, all of Kirksville, for defendant in error.

JOHNSON, J.

This is an action against the principal and surety on a bond of a notary public to recover $2,000, the amount of the penalty of the bond, on the ground that plaintiff sustained damages in excess of that sum on account of a breach of a condition of the bond by the notary. The jury returned a verdict for plaintiff, and the defendants brought the case here by writ of error. No bill of exceptions was filed, we have nothing but the record proper before us, and the only point raised by defendant is that the petition is fatally defective and will not support the verdict and judgment. From an additional abstract of the record filed by plaintiff, it appears that a stipulation was filed in the circuit court in which the issues to be tried were defined and restricted and the defendants expressly waived all objections to the petition. Objection to the consideration of this stipulation is offered by defendants on a number of grounds which need not be stated, since our analysis of the petition has led us to the conclusion that it states a good cause of action and is sufficient to support the verdict and judgment.

The pleaded facts thus may be stated: Defendant Webber was duly commissioned as a notary public within and for Adair county, and with defendant Latham as surety executed the bond in suit, which was conditioned as required by law for the faithful performance by Webber of the duties of the office. Plaintiff lived in Adair county, in Kirksville, and was engaged in the business of lending money on real estate security. In June, 1908, D. O. Seaman, who lived in Macon county, applied to plaintiff for a loan of $4,000, on the security of certain lands in that county which he claimed to have recently purchased, partly from John N. Potes and partly from Gottfried Wolf. Plaintiff was willing to lend the money on the proffered security, and Seaman delivered abstracts of title to plaintiff which showed that Potes and Wolf had owned the respective tracts for many years and had recently conveyed them by warranty deeds to Seaman. The true fact was that Potes and Wolf were still the owners of the land, and the deeds which bore their signatures and acknowledgments were forged by Seaman, who had no title or interest in the property. The abstract of each tract showed that many years ago it had been sold for taxes and the purchasers had received and filed tax deeds. Plaintiff had the abstracts examined, and at the suggestion of the examiner required Seaman to procure affidavits from Potes and Wolf showing title by adverse possession as against those outstanding tax deeds. Seaman forged affidavits to meet this requirement which were dated June 29, 1908, and bore the forged signatures of Potes and Wolf. They also bore the signature...