Tapley v. Herman

• Decision Date: 24 June 1902
• Citation: 69 S.W. 482,95 Mo. App. 537
• Parties: TAPLEY v. HERMAN et al.
• Court: Missouri Court of Appeals

69 S.W. 482

95 Mo. A. 537

TAPLEY v. HERMAN et al.

Court of Appeals at St. Louis, Missouri.

June 24, 1902.

NOTE — PAYEE — IDENTITY — OWNERSHIP — PRESUMPTION — REFORMATION OF INSTRUMENT — MUTUAL MISTAKE — DIRECTING VERDICT.

1. A note payable to "Whose Tatley" was produced in evidence (unindorsed) by the executor of Hosea Tapley in an action on the note; and it is held, in the circumstances stated in the opinion, that it might be inferred that Hosea was intended as the payee.

2. Evidence is admissible to identify the holder of a note as the person intended by the name of the payee.

3. The issue involved in the reformation of an instrument is one of equitable cognizance, triable by the court.

4. An answer in a suit on a promissory note set up facts to show that the amount named in the note was inserted by mutual mistake, through an error of a scrivener, and that a lesser sum expressed the real contract of the parties. Held that, without any prayer for reformation of the instrument, said facts were available as a defense in reduction of plaintiff's demand.

5. A cause of action to reform a note for mutual mistake, and another to enforce payment thereof, should be tried separately, — the former first.

6. Possession of a note by an executor permits an inference that the testator was the owner; and the court may draw inferences of fact from the similarity of names as pronounced by persons of foreign descent, as described in the opinion.

7. A note payable to the order of a named party imports a consideration, under Rev. St. 1899, § 894.

8. A peremptory instruction to find for defendant is erroneous where plaintiff, in any aspect of the case, is entitled to recover on the case made by his pleadings.

(Syllabus by the Judge.)

Appeal from circuit court, Ralls county; David H. Eby, Judge.

Action by William J. Tapley against John Herman and others. Judgment for defendants. From an order granting a new trial, they appeal. Affirmed.

E. L. Corwine, for appellants. O. C. Wybrant, J. O. Allison, and T. E. Allison, for respondent.

BARCLAY, J.

Plaintiff is executor of the estate of Hosea Tapley, deceased. Defendants are the makers of a note which is the foundation of the action. That document is as follows: "$100.50. September 16, 1889. Twelve months after date we promise to pay to the order of Whose Tatley one hundred fifty dollars, for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of ten per cent. per annum, and, if the interest be not paid annually, to become as principal, and bear the same rate of interest. Utmer Herman. John Herman. John Herman." The petition, after showing plaintiff's standing as executor of the owner of the note, follows the ordinary form of a suit upon a note. It alleges, among other things, that defendants "promised, for value received, to pay to the said Hosea Tapley, deceased, by name of `Whose Tatley,' twelve months after the date of said note, the sum of one hundred and fifty dollars, with interest," etc. It also concedes that defendants, after the death of Hosea Tapley, made two payments, of $25 and $19, respectively, upon the note. The answer of all the defendants admitted the execution of the note, denied the other allegations generally, and specially denied that the consideration was $150; stating that it was really $100.50. The answer then proceeds to state a cause of action for the reformation of said instrument to make it read "one hundred and fifty-hundredths dollars," upon the ground that a mutual mistake of the parties was made at the execution thereof by an error of the scrivener, who wrote what appears in the note, when the real agreement of the parties was that it should express a promise to pay $100.50, as appears in figures in its caption. The answer does not contain a definite prayer for relief upon the ground aforesaid, but it states facts from which it may be inferred that defendants desire the instrument to be reformed so as to express an obligation to pay $100.50 only, and thereby reduce the principal of the demand to that sum. Plaintiff, by reply, denied the new matter in the answer. At the trial by the court, a jury having been waived, defendants admitted the death of Hosea Tapley, as alleged, and the appointment and qualification of plaintiff as administrator of the estate of Hosea. Plaintiff then introduced the note in evidence, as already quoted, and rested. The court thereupon gave a declaration of law to the effect that, upon the pleadings and evidence, plaintiff was not entitled to recover, and that the finding of the court should be for defendants. The court accordingly entered judgment for defendants. In due time, however, on plaintiff's motion, the court granted a new trial upon the ground that an illegal and improper declaration of law had been given, which was the third ground in the motion for new trial. The other grounds of that motion were as follows: "(1) Because the finding and the judgment of the court are against the law and the evidence in the cause. (2) Because the finding and judgment of the court are against the weight of evidence produced at trial of the cause." "(4) Because since the trial of the cause plaintiff has discovered new and material evidence in the cause; said evidence relating to the execution by defendants to said deceased, Hosea Tapley, of the note sued upon herein, of the existence of which said evidence plaintiff, though...