The First National Bank of St Charles v. Payne
| Decision Date | 02 July 1892 |
| Parties | The First National Bank of St Charles, Appellant, v. Payne et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
T. F McDearmon for appellant.
(1) Under the testimony in the case the defendants were makers of the note sued on, and were liable as such. When parties place their names on the back of a note to which they are strangers, they are regarded as makers in the absence of extrinsic proof of an agreement to the contrary between them and the payee, known to the indorsee. Bank v Hammerslough, 72 Mo. 274; Semple v. Turner, 65 Mo. 696; Chaffe v. Railroad, 64 Mo. 196; Cahn v. Dutton, 60 Mo. 297; Stagg v. Linnenfelsor, 59 Mo. 336; Seymore v. Farrel, 51 Mo. 95; Mammon v. Hartman, 51 Mo. 168; Boyer v. Boogher, 11 Mo.App. 130; Bosbyshell v. Ehninger, 3 Mo.App. 574; Butler v. Gambs, 1 Mo.App. 466; Burton v. Hasford, 10 W.Va. 470; Houghton v. Ely, 26 Wis. 181; Chaddock v. Venness, 35 N. J. 517; Bank v. Willis, 8 Metc. (Mass.) 504. And the onus is on the defendants to show such agreement. Cahn v. Dutton, 60 Mo. 297; Boyer v. Boogher, 11 Mo.App. 130; Chaffee v. Railroad, 64 Mo. 193. And they must show that the indorsee, plaintiff in this case, had notice of such agreement in order to bind it. Chaffee v. Railroad, 64 Mo. 193. The court, therefore, erred in refusing instructions, numbered 1 and 2, asked by plaintiff, and rendering judgment for defendants. (2) The testimony of defendants, Rochester Ford and Fannie F. Payne, was clearly illegal. They were incompetent witnesses, and their testimony should have been excluded, for the reason that Robert H. Payne, a maker and payee of the note in controversy, and who negotiated it to the plaintiff, and John E. Stonebraker, the plaintiff's cashier with whom the negotiation was made by said Payne, were both dead. Williams v. Edwards, 94 Mo. 447; Butts v. Phelps, 79 Mo. 302; Weiland v. Weyland, 64 Mo. 168; Chapman v. Dougherty, 87 Mo. 617; Meier v. Thieman, 90 Mo. 433; Ring v. Jamison, 66 Mo. 424; Kellogg v. Malin, 62 Mo. 429; Stanton v. Ryan, 41 Mo. 510; Angell v. Hester, 64 Mo. 142; Robertson v. Reed, 38 Mo.App. 32; Ashbrook v. Letcher, 41 Mo.App. 369. (3) Plaintiff was entitled to recover, even though it appeared from the testimony that Robert H. Payne's name was indorsed upon the back of the note at the time the defendants put their names thereon. Robert H. Payne, being both payee and maker of the note, gave the note the character and legal effect of a note payable to bearer when he negotiated it by delivery to the plaintiff bank. Revised Statutes, 1889, sec. 735, p. 256. (4) Plaintiff contends that if defendants were indorsers, as they claim, they waived protest and notice in writing on the back of the note.
Silas B. Jones for respondents.
(1) When a negotiable promissory note is drawn by the maker payable to his own order and indorsed by him, and afterwards indorsed by a third person, such third person is upon the face of the paper an indorsee as well as indorser, and liable only as such; and he is not a joint maker of the note under the rule, that where a third person, neither payee nor indorsee of a negotiable promissory note, writes his name on the back of it, he is prima facie a joint maker of the note. Rickey v. Dameron, 48 Mo. 61; Kuntz v. Temple, 48 Mo. 71; Bigelow v. Colton, 13 Gray, 309; Lake v. Stetson, 13 Gray, 310; Stoddard v. Pennimann, 108 Mass. 366; Heidenheimer v. Blumenkron, 56 Tex. 308; Williams v. Bank, 67 Tex. 606; 2 Parsons' Bills & Notes, p. 122; Tiedeman on Commercial Paper, sec. 270; 1 Daniel on Negotiable Instruments, secs. 707, 707a; Story on Promissory Notes, sec. 476, note 2. (2) If the note is payable to the maker's own order, and a third person indorses it before it is indorsed by the maker, and the maker afterwards indorses the note above the name of the third person, then the latter is liable as indorser only, and not as maker. Clapp v. Rice, 13 Gray, 403; Stoddard v. Pennimann, 108 Mass. 366; Dubois v. Mason, 127 Mass. 37; Blatchford v. Milliken, 35 Ill. 434; Kayser v. Hall, 85 Ill. 511. (3) First. Where a promissory note, negotiable in form, is made by the maker payable to his own order, it cannot take effect as a note until indorsed by the maker. 1 Daniel on Negotiable Instruments, sec. 130; Tiedeman on Commercial Paper, sec. 20; Smalley v. Wight, 44 Me. 442; Little v. Rogers, 1 Met. 108. Second. And in such case as the note can never have any validity until the name of the payee appears upon it as an indorser, a third person writing his name in blank upon the note before it is indorsed by the maker is presumed in law to do so on the understanding, that when the note takes effect the name of such third person will appear thereon as second indorser, and such third person will be held liable as indorser only. Blatchford v. Milliken, 35 Ill. 434; Kayser v. Hall, 85 Ill. 511; Clapp v. Rice, 13 Gray, 403; Stoddard v. Pennimann, 108 Mass. 366; Dubois v. Mason, 127 Mass. 37. Third. If when a note first takes effect by indorsement and delivery by the payee, the name of a third person appears on the back thereof, under the name of the payee, such third person will be liable as an indorser only; and it is immaterial when the names were written on the back of the note. Stoddard v. Pennimann, 108 Mass. 366; Clapp v. Rice, 13 Gray, 403; Pierce v. Mann, 17 Pick. 244. (4) If a party indorses a negotiable promissory note, which is payable on its face to bearer, he is liable as an indorser only. Bigelow v. Colton, 13 Gray, 309; Dubois v. Mason, 127 Mass. 37; Tillman v. Ailles, 5 Sm. & Mar. 373; Story on Promissory Notes, sec. 132; 1 Daniel on Negotiable Instruments, sec. 707a; Tiedeman on Commercial Paper, sec. 270. (5) To render a party liable as indorser only, whose name is written in blank on the back of a negotiable note, it is not essential that he be in fact an indorsee, or that he ever in fact held, owned or transferred the note. If he is apparently on the paper an indorsee as well as an indorser, he is liable in the latter character only, and not as maker. Rickey v. Dameron, 48 Mo. 61; Marshall v. Cabanne, 40 Mo.App. 38; Dietz v. Corwin, 35 Mo. 376; Schnell v. P. M. Co., 89 Ill. 581. (6) When one of the joint obligors in a contract dies, the obligee is not thereby rendered incompetent as a witness, except as to transactions had between him and the deceased obligor. Fulkerson v. Thornton, 68 Mo. 468; Nugent v. Curran, 77 Mo. 323; Williams v. Perkins, 83 Mo. 379, 385; Wiley v. Morse, 30 Mo.App. 266, 269. (7) The death of one of several joint obligors in a contract does not render his surviving associates on the same side of the contract incompetent as witnesses in a suit between them and the obligee on the contract. The statute renders a party to a contract incompetent as a witness, only when the adverse or opposite party to the contract is dead. Stanton v. Ryan, 41 Mo. 509; Ashbrook v. Letcher, 41 Mo.App. 369; Butts v. Phelps, 79 Mo. 302; Williams v. Edwards, 94 Mo. 447; Nugent v. Curran, 77 Mo. 323. (8) Where the contracting agent of a corporation is dead, through whom a contract has been made with the corporation, the adverse party to the contract is only disqualified as a witness in regard to matters which passed between him and the deceased agent of the corporation. Williams v. Edwards, 94 Mo. 447; Butts v. Phelps, 79 Mo. 302; Stanton v. Ryan, 41 Mo. 510; Nichols v. Jones, 32 Mo.App. 657; Williams v. Perkins, 83 Mo. 379; Orr v. Rode, 101 Mo. 387. (9) Where the surviving party to a contract sues thereon and testifies in his own behalf, the defendant may testify in rebuttal, although one of the parties to the other side of the contract is dead, so long as he does not testify in regard to what transpired between him and the deceased adverse party to the contract. Stanton v. Ryan, 41 Mo. 510; Williams v. Edwards, 94 Mo. 447; Butts v. Phelps, 79 Mo. 302; Wiley v. Morse, 30 Mo.App. 266.
This action is based upon the indorsements of defendants upon the following promissory note filed with the petition:
Upon which were the following indorsements:
The petition was in two counts. The first charged the defendants as makers, the second as indorsers, waiving protest; issue was joined by answer, and the case tried before the court without a jury.
The signatures of the parties on the note were admitted.
The evidence tended to prove that the waiver of protest of May 30, 1889, indorsed on the back of the note was written on that day by Robert H. Payne, and no authority from defendants to him, so to do, being shown, the only possible ground of recovery in the case was to charge the defendants as makers.
The court, at the request of the plaintiff, declared the law of the case, by way of instruction, to be that "if the evidence shows that the defendants indorsed their names on the back of the note in suit, while in the hands of the payee, and that the payee negotiated and delivered the same to the plaintiff without indorsing his name on the back thereof, the plaintiff is entitled to recover of the defendants as makers," found the issue for the defendants, and from the judgment in their favor the plaintiff appeals.
On the trial the plaintiff introduced the oral evidence of its clerk or bookkeeper, tending to prove that the note in...
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