Tailer v. M.J. Murphy Furnishing Goods Co.

• Decision Date: 01 February 1887
• Citation: 24 Mo.App. 420
• Parties: W. H. TAILER ET AL., Respondents, v. M. J. MURPHY FURNISHING GOODS COMPANY ET AL.; JESSE ARNOT, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 420

W. H. TAILER ET AL., Respondents,

v.M. J. MURPHY FURNISHING GOODS COMPANY ET AL.; JESSE ARNOT, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1887.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

FISHER & ROWELL, for the appellant: The court, in its instructions and facts found, gave judgment against the defendant upon the sole ground that the defendant knew at the time the renewal note was given that it was to be used for the purpose of extending the note sued upon, and there is no evidence to sustain that finding. Schulte v. Railroad, 5 Mo. App. 578; Welch v. McAllister, 13 Mo. App. 89; Robert v. Stirling, 4 Mo. App. 593; Schenk v. Sauter, 73 Mo. 46; Powell v. Railroad, 76 Mo. 80; Ellis v. Bray, 79 Mo. 227.

MILLS & FLITCRAFT, for the respondents: Any act, course of conduct, or language of the drawer or endorser, calculated to induce the holder not to make demand or protest, or to give notice, will dispense with the necessity of taking these steps. Bank v. Wray, 4 Strobh. Law, 87; Thornton v. Wynn, 12 Wheat. 184; Lary v. Young, 13 Ark. 401; Leffingwell v. White, 1 Johns. Cas. 99; Marshall v. Mitchell, 35 Mo. 221. Any act of the endorser calculated to put the holder off his guard and to prevent him from treating the note as he otherwise would have done, constitutes a waiver. Yaeger v. Farwell, 13 Wall. 12; Boyd v. Bank, 32 Ohio St. 526; Moyer's Appeal, 87 Pa. St. 129; Bank v. Ryerson, 23 Iowa, 508; 1 Parsons N. & B. 582, 594.

ROMBAUER, J., delivered the opinion of the court.

This is a suit against the defendant, Arnot, as endorser of two promissory notes, made by the M. J. Murphy Furnishing Goods Company. The petition contains two counts, and judgment was rendered against him on both. There is no controversy concerning the first count, but the defendant, Arnot, contends that there was no substantial evidence to charge him on the second count, and that the court should have so declared, and hence his appeal.

The petition did not allege that the note was presented for payment, or that the defendant had notice of its dishonor, but it averred facts, which if true, amounted to a waiver of such demand and notice, which facts were denied by answer.

The cause was tried by the court sitting as a jury, and the court, instead of submitting to itself the facts in a hypothetical form, as is customary in such cases, did substantially the same thing, by making a detailed finding of facts, and declaring the legal effect of the facts so found. This finding and declaration of law based thereon, bring the controverted points fully before us, and are in the following form:

“The court, sitting as a jury, finds the facts respecting the second count of the petition to be as follows, to-wit:

That prior to the maturity of the note sued upon in the second count, the defendant, Arnot, endorsed another note made by his co-defendant, payable to its order, in the sum of $594.98. That said note for $594.98, was forwarded to the plaintiffs by the M. J. Murphy Furnishing Goods Company, together with a check for the sum of two hundred dollars, with the request that such note and check be taken and accepted to retire the note in suit. That the plaintiffs received said note and check, prior to the maturity of the note in suit, and upon the receipt thereof, determined to accept the same in discharge of the note in suit, and for that reason did not cause the note in suit to be protested at its maturity. That, subsequently, the plaintiff discovered that said note for $594.98 was not endorsed by the defendant, to whose order the same was made payable, and, therefore, the plaintiff caused the said note to be returned to the M. J. Murphy Furnishing Goods Company, with the request that said note be properly endorsed and returned to them. That said Furnishing Goods Company received said note, but did not cause the same to be endorsed, and have never returned the same to the plaintiff. That the defendant, Arnot, when he endorsed said note for $594.98, was aware of the use thereof intended to be made, and that was in fact made, by his co-defendant, and assented thereto. That the plaintiffs did not discover the defect in the endorsement of said note for $594.98 until after the note in suit was over due, nor until on or about July 18, 1885, when said note was returned to have the said endorsement executed.”

On the facts above found the court declares, as a matter of law, that the defendant, Arnot, waived demand of payment and notice of non-payment of the note in suit, and is liable thereon to these plaintiffs.

It must be conceded, both on principle and authority, that if there was substantial evidence to warrant the court's finding of facts as above, its declaration of law based on such finding was proper, because in such event the acts of the defendant, Arnot, were a sufficient waiver of presentment and notice. Daniels on Neg. Instr., sect. 1103; Grove v. Vining, 7 Met. 212; Leary v. Miller, 61 N. Y. 489.

The...