Sumner Exchange Bank v. Miller
| Decision Date | 17 December 1928 |
| Citation | 13 S.W.2d 1102,222 Mo.App. 1078 |
| Parties | SUMNER EXCHANGE BANK, RESPONDENT, v. FRED B. MILLER, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Chariton County.--Hon. J. E Montgomery, Judge.
AFFIRMED.
Judgment affirmed.
O. F Libby, James W. Davis and Arch B. Davis for respondent.
John D Taylor for appellant.
Trimble, P. J., absent.
This is an action to recover an unpaid balance on a promissory note alleged to have been executed by plaintiff and five others, payable to plaintiff. The other five signers paid their proportions of the note and this suit is against defendant alone.
Plaintiff is a state banking corporation located at Sumner, Chariton county, Missouri. The record shows that on October 5, 1921, and prior thereto, the Sumner-Forker Grain Company was a corporation doing business at Sumner. Defendant, at that time, was a stockholder and director of said Grain Company which company was indebted to plaintiff in the sum of $ 5000, as evidenced by a promissory note. On or about the date last mentioned, on advice of the Commissioner of Finance of Missouri, the cashier of plaintiff bank demanded additional security on said note. Thereupon, on October 5, 1921, defendant Fred B. Miller, J. I. Kaye, L. O. Allen, E. H. Stoner, Ray Taylor and Ross Louden executed the demand note involved in this suit, payable to plaintiff, as collateral for the grain company's note, each signing individually. One Frakes, also a director of the grain company, did not sign the note. Thereafter the grain company went into liquidation and the makers of the note were left to pay the same. The record shows the other co-makers each voluntarily paid his portion of the obligation on April 12, 1928, in the sum of $ 984.14, and the credits were properly indorsed on said note; that defendant refused to pay his pro rata share and this suit followed.
The petition is formal and charges that on October 5, 1921, defendant Fred B. Miller, J. I. Kaye, L. O. Allen, Ray Taylor, Ross Louden and E. H. Stoner borrowed of plaintiff the sum of $ 5000 in money and on said date made, signed, executed and delivered to plaintiff their promissory note in writing, dated October 5, 1921, promising, for value received to pay plaintiff on demand the sum of $ 5000, with interest thereon at seven per cent per annum from date; that, since the making and delivery of said note, the makers thereof have promptly paid the interest up to April 5, 1925, and that since that time the principal and interest is past due and unpaid as to defendant; that on April 12, 1928, the makers Kaye, Allen, Taylor, Louden and Stoner have paid each his proportion of said indebtedness so that there remains due and unpaid from defendant $ 984.14, with interest at seven per cent from April 5, 1925; that payment thereof has been demanded and refused though long past due, and judgment is sought for this amount.
A verified copy of said note, filed with the petition, is as follows:
"$ 5,000.00
Sumner, Mo., Oct. 5th, 1921.
The answer admits the corporate status of plaintiff, as pleaded in the petition and denies that defendant, with J. I. Kaye, L. O. Allen Ray Taylor, Ross Louden and E. H. Stoner borrowed $ 5000 in money on October 5, 1921, and executed and delivered their promissory note therefor, described in the petition. Further answering defendant says that on and prior to October 5, 1921, he, together with persons named in the petition and others, was interested in an elevator company doing business at Sumner and Forker, known as the Sumner-Forker Grain Company; that on October 5, 1921, the president and secretary of said elevator company executed a note of the said company to plaintiff for $ 5000; that on said date one John McCormick, cashier of plaintiff bank, suggested to this defendant, J. I. Kaye, L. O. Allen, Ray Taylor and E. H. Stoner that the bank examiner had complained about the note given by the elevator company and suggested that security be procured on the same; that the cashier requested the board of directors of the elevator company to give their notes as collateral in order that the cashier might satisfy the bank examiner; that the cashier further suggested that he (McCormick) and G. J. Taylor president of the bank would join in the execution of the note; that thereafter, with the understanding that all members of the board of directors of the elevator company, together with said cashier and president of the plaintiff bank, would execute said note, this defendant signed the same. The answer avers that the note was prepared and signed by Kaye, Allen, Ray Taylor, Louden, Stoner and defendant, but that Ira Frakes, a member of the board of directors of the elevator company did not sign, nor did McCormick and G. I. Taylor; and, although plaintiff through its cashier knew that said note was not executed by the persons who were to have executed the same and before the note was completed as understood and agreed, it was received by plaintiff and is the note upon which this action is based. The answer states said note was never completely executed; that defendant never became liable thereon; that he never at any time consented to delivery of the note to plaintiff with the three signatures omitted therefrom; denies that defendant has ever paid any interest on said note as alleged in the petition or that any interest has been paid thereon by anybody for him with his knowledge and consent. The reply is a general denial. The cause was tried to a jury resulting in an instructed verdict for plaintiff in the sum of $ 992.36.
Motions for a new trial and in arrest of judgment were overruled and defendant has appealed.
The only evidence introduced on the part of plaintiff was the note in issue. Defendant, under the allegations and averments in his answer, undertook to introduce evidence to show (1) that he signed the note as accommodation maker for plaintiff, (2) want of consideration, and (3) that the note was never completed in accordance with the terms of the oral agreement entered into at the time the note was signed by him. In support of his appeal defendant argues he should have been allowed to prove the note was signed by him as an accommodation to plaintiff for the purpose of meeting objections of the bank examiner respecting the note. The record discloses the defendant was allowed to testify that the cashier stated he "would like to have additional security on this note." We quote from the record:
(Objection by plaintiff's counsel.)
"THE COURT: Overruled."
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Associates Discount Corp. v. Isgriggs
...are Klein v. Keyes, 17 Mo. 326; Hickman v. Kunkle, 27 Mo. 401; Simon v. Ryan, 101 Mo.App. 16, 73 S.W. 353; and Sumner Exchange Bank v. Miller, 222 Mo.App. 1078, 13 S.W.2d 1102. References may also be made to Hinniger v. Trax, 67 Mo.App. 521; Wiltshire v. Triplett, 71 Mo.App. 332; and Naylor......
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