Taylor v. Newman

• Decision Date: 30 April 1883
• Citation: 77 Mo. 257
• Parties: TAYLOR v. NEWMAN, Appellant.
• Court: Missouri Supreme Court

77 Mo. 257

TAYLOR

v.NEWMAN, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

Chas. A. Winslow for appellant.

T. B. Kimbrough for respondent.

MARTIN, C.

This action was commenced in the Randolph county circuit court June 14th, 1876, on the following order:

Building Committee, Methodist Church, will pay G. W. Taylor the sum of $126.25, and charge to

NEWMAN & LESSLEY.

September 9th, 1872.

The petition alleges that the order was delivered to plaintiff and by him presented to John B. Taylor, one of the building committee, who wrote upon the back of it the following acceptance:

Accepted, provided the committee owe the amount on settlement; if not, then as far as they owe.

JOHN B. TAYLOR, for Committee.

September 9th, 1872.

That afterward, on a blank date, said John B. Taylor had a settlement with Newman & Lessley, and thereafter wrote this indorsement on said order: “There is nothing coming to Newman & Lessley from said building committee. John B. Taylor, for committee.” That the order was given with the knowledge that a settlement must take place between Newman & Lessley and the Building Committee before anything could be paid on same; that after said settlement plaintiff gave Newman & Lessley notice that said order had not been paid, and demanded payment thereof from them. Judgment is asked for the amount of the order with ten per cent interest from its date.

Defendant, in his answer, admits the execution of the order, alleging that, at the time it was given, the Methodist church owed Newman & Lessley the amount thereof, demes that said firm ever had any final settlement with the Building Committee, and alleges that plaintiff agreed to accept said order upon said committee in full payment for the amount therein contained then owing by defendant individually, and by Newman & Lessley as a partnership, upon open account to the plaintiff, and to use all due and proper and necessary diligence in the collection of the same from said committee. It is then alleged, that plaintiff failed to use any diligence in the collection of said order, and failed and neglected to take any proceedings for the collection of same, that he extended the time of payment without the consent of defendant, and that he failed to notify defendant of the failure to pay same until the commencement of this suit. It is denied that the order was ever duly presented as charged.

Plaintiff, in his replication, traverses the allegations of the answer specifically; and alleges that, upon being notified of the non-payment of said order by said committee defendant did thereupon agree and promise to pay plaintiff the full amount on said order, and defendant then and there agreed that plaintiff should hold said order as a demand against him for the amount of money therein named.

The issues were tried by jury at the March term, 1878, of said circuit court, and resulted in a verdict for plaintiff in the sum of $195.37. At the trial the plaintiff read in evidence the order and indorsement as stated in the petition, the execution of which was admitted by defendant. The plaintiff next testified to the circumstances under which the order was taken; and said that he told defendant that the committee on whom it was drawn claimed they did not owe Newman & Lessley anything, but that he would take the order and credit the account with anything received on it; that defendant said he owed it and would pay it if the committee did not; that the indorsement of September 9th was made on it, when presented, on the day it was drawn; that the order was presented the second time to the committee, who declared they did not owe and would not pay anything on it, and thereupon made the second indorsement on it to that effect; that defendant was not present and did not at the time know of the second indorsement; that plaintiff then notified defendant of the refusal of the committee to pay, and defendant said he would pay every cent of the order; that he did not know of any settlement between Newman & Lessley and the committee, and did not know that anything was due them, that the order was taken under the belief it would not be paid, which was communicated to defendant, and that plaintiff told defendant at the time he would do no more than present it; that he was not to institute proceedings upon it, but only to present it for payment.

Before the plaintiff concluded his own testimony the defendant objected to the introduction of any evidence at all, on the ground that the petition did not state facts sufficient to constitute a cause of action, which objection was overruled.

The defendant was produced in behalf of himself. The court refused to permit him to testify that the building committee was indebted to Newman & Lessley, or that there had or had not been a settlement. He was allowed to testify that he did not know of the refusal of the committee to pay until April, 1873; that the plaintiff was never authorized by defendant to take a conditional acceptance, and that defendant did not know of such acceptance until long after. Defendant offered to prove that the indebtedness of the committee to Newman & Lessley was for work and labor done on a church, for which, at the date of the order, they had a mechanic's lien, which was lost by taking the conditional acceptance and extending the time. This evidence was excluded. Defendant testified that he did not remember telling plaintiff he would pay every dollar of the order, or that he would pay it when he got money from Tennessee. Another witness was produced, who offered by receipts, papers and statements to prove that the building committee was indebted to Newman & Lessley at the date of the order, but was not permitted to so testify. This concluded the evidence.

The following instructions were given for plaintiff:

1. The jury are instructed that the execution of the order by defendant and Lessley is admitted by defendant.

2. Although the order is given in the firm name of Newman & Lessley, yet plaintiff may recover against defendant.

3. If the jury believe from the evidence that Taylor presented the order to the building committee, or two of them, within a reasonable time after the execution, and they refused to accept it unconditionally, and he informed Newman of the fact and Newman agreed to pay it, they will find for plaintiff.

The court refused the following instructions asked by defend

1. The jury are instructed that, under the testimony in this case, plaintiff cannot recover.

2. The jury will find for the defendant, unless they believe from the evidence that there was a settlement between the building committee and Newman & Lessley, or that Newman waived the necessity of a settlement, and agreed to pay the order, after failure to pay by the committee, notwithstanding there had been no settlement.

3. The building committee is, under said order, personally liable to the plaintiff for the payment of said order, and unless the jury believe from the evidence that the same was duly presented by plaintiff to said committee for acceptance, and payment of same was refused by said committee, and said order protested for non-payment, and notice of said protest given to defendant, the jury will find for defendant, unless they further believe from the evidence that defendant waived the necessity of notice of non-payment.

4. The jury are instructed that plaintiff cannot recover under the pleadings in the case, on the testimony offered.

5. If the jury believe from the evidence in this cause that defendant gave the order in question, the law presumes that he had funds in the hands of the drawee sufficient to meet its payment, and if the payee received a conditional acceptance on said order, without the consent of defendant, postponing the payment of said order until a settlement was made between defendant and said building committee, then plaintiff cannot recover until he shows said settlement to have been made and nothing due defendant.

6. It devolves upon plaintiff to prove said settlement, and that there is nothing due defendant, before he can recover in this cause.

1. BILL OF EXCEPTIONS.

The first point urged by respondent's counsel for affirmance of the judgment is, that the bill of exceptions appearing on the record was filed at a period of time subsequent to the term at which the trial took place, and while this was done by leave of court, the record fails to disclose that it was done with the consent of the parties. When a bill of exceptions is filed after the term at which the case was tried or motion for new trial disposed of, two conditions are necessary, according to the decisions of the Supreme Court, to make it a part of the record; there must be a consent or stipulation of the parties, and an order of court to the same effect. McCarty v. Cunningham, 75 Mo. 279. I may add what is probably implied in the foregoing condition, viz: that the bill must also be filed within the time limited by the stipulation and order. In this case the defendant obtained leave of the court to file his bill of exceptions by the 26th of March, 1878. This order of the court was made on the 11th of March, 1878. The record recites that “afterward, on the 23rd day of March, 1878, the defendant filed in the clerk's office of said court his bill of exceptions.” The certificate of the clerk to the transcript of the record refers to the bill in the transcript as a full, true and complete “copy of the bill of exceptions on file in said court in the cause therein named.” There is nothing in the record to sustain the assumption that the 23rd or the 26th of March, 1878, was after the lapse of the term. There is nothing to show that the term had been adjourned and that the bill was filed in vacation. Under this state of facts the present bill will have to be accepted as part of the record. Pershing v. Canfield, 70 Mo. 140; Weil v. Jones, 70 Mo. 560.

2. INLAND BILL OF EXCHANGE:...