Studebaker Bros. Mfg. Co. v. Montgomery

• Decision Date: 31 October 1881
• Citation: 74 Mo. 101
• Parties: STUDEBAKER BROS. MANUFACTURING COMPANY v. MONTGOMERY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 101

STUDEBAKER BROS. MANUFACTURING COMPANY

v.MONTGOMERY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Adair Circuit Court.--HON. J. W. HENRY, Judge.

AFFIRMED.

James M. DeFrance for appellant.

Harrington & Cover for respondent.

NORTON, J.

This suit was commenced in the Adair county circuit court to recover judgment on a note for $353.20, executed to plaintiff and signed by defendant, “M. S. Montgomery, as administrator, as surviving partner of M. & M.” Defendant in his answer denies that plaintiff was a corporation, denies that defendant executed the note, except as thereinafter stated, and then alleges “that one Carlistus H. Marine and this defendant were doing business under the firm name of Montgomery & Marine, and that said firm had been doing business with Studebaker Bros., and that there was an unsettled account between Montgomery & Marine and Studebaker Bros., and that before October, 1872, said Marine died, and this defendant was appointed administrator of the estate of said Montgomery & Marine, by the proper court, by reason of this defendant being a surviving partner of said firm, and that one ______, who was agent of said Studebaker Bros., on the 23rd day of October, 1873, came to defendant and claimed that said Montgomery & Marine owed said Studebaker Bros. the sum of $353.20, and desired that said amount be allowed by defendant as administrator of said estate of Montgomery & Marine, and that defendant signed said note simply as a memorandum that there was due from said estate said sum, with the distinct understanding and agreement that the said instrument here sued on was to have the same effect that an allowance by the probate court would have, with a view of saving the costs and expense of presenting said claim to said probate court against said estate for allowance, and that said note was not to be considered or treated as the note of this defendant, nor except as a statement by the administrator of said estate, that that sum had been allowed against said estate by him in favor of Studebaker Bros., and that at that time the defendant refused to give his individual note for said claim, and would not sign any note until the agreement aforesaid was made, and that when he signed said note, ‘M. S. Montgomery, as administrator, as surviving partner of M. & M.,’ it was understood between the parties thereto as above set out that said note was not regarded as a note of this defendant, but a simple memorandum, showing that the administrator of said estate and said Studebaker Bros. had agreed on that sum as the indebtedness of said estate to them.” The court, on motion of plaintiff, rendered judgment notwithstanding the answer, from...