The First State Bank, of Hawkeye v. Noel

• Decision Date: 05 May 1902
• Citation: 68 S.W. 235,94 Mo.App. 498
• Parties: THE FIRST STATE BANK, of Hawkeye, Iowa, Respondent, v. R. D. NOEL, Appellant
• Court: Kansas Court of Appeals

68 S.W. 235

94 Mo.App. 498

THE FIRST STATE BANK, of Hawkeye, Iowa, Respondent, v. R. D. NOEL, Appellant

Court of Appeals of Missouri, Kansas City

May 5, 1902

Appeal from Cass Circuit Court.--Hon. Wm. L. Jarrott, Judge.

AFFIRMED.

Judgment affirmed.

J. R Nicholson and George Bird for appellant.

(1) The justice did not acquire any jurisdiction over the subject-matter of the controversy, because the instrument filed as the basis of the suit did not disclose any cause of action in favor of plaintiff against defendant. The court should have sustained defendant's objections to the introduction of the contract in evidence. Smith v Zimmerman, 29 Mo.App. 249; Pattison v. Lutz, 1 Mo.App. 133. (2) Even in a suit to recover on negotiable promissory note, an indorsement itself of such note unsupported by evidence aliunde, is insufficient to show title in plaintiff; much less, then, a contract such as the one sued upon in this case. Bank v. Pennington, 42 Mo.App. 355. (3) Plaintiff must show compliance with his contract before he can recover. The uncontroverted evidence shows that the telephone lines were to have been built to Daugherty within ninety days after date of contract, and that they were not built for six or eight months thereafter, and that defendant was not furnished with telephone service after the line had been built as the contract provided. Freeman v. Aylor, 62 Mo.App. 613; Eyerman v. Association, 61 Mo. 489. (4) On an appeal from the justice of the peace, the circuit court can not substitute a new party plaintiff. Altheimer v. Teuscher, 47 Mo.App. 284; Durnin v. Waddingham, 12 Mo.App. 145; Clements v. Greenwell, 40 Mo.App. 589; Courtney v. Sheehey, 38 Mo.App. 390.

Givan & Glenn and F. F. Rozzelle for respondent.

(1) Plaintiff had possession of the instrument sued on, properly indorsed by the payee, and this was evidence of ownership. Dorn v. Parsons, 56 Mo. 601; Cavitt v. Tharp, 30 Mo.App. 131; Rice v. McFarland, 41 Mo.App. 489; Keim v. Velte, ___ Mo.App. ___; Hoyt v. Davis, 21 Mo.App. 239; Evans v. White, 86 Mo.App. 543; Green v. Reserve Association, 79 Mo.App. 182; Ward v. Pine, 50 Mo. 39; 1 Enc. Pld. and Prct., pp. 663-5. (2) The written agreement in note covers all the contract. James v. Clough, 25 Mo.App. 147; Organ Co. v. Swarzell, 61 Mo.App. 490; Higgins v. Cartwright, 25 Mo.App. 609; Reed v. Nicholson, 37 Mo.App. 646. (3) Want of consideration is waived by the acceptance of the thing purchased. Black River L. Co. v. Warner, 93 Mo. 386; Crawford v. Elliott, 78 Mo. 497; Stevens v. Mackay, 40 Mo. 224. (4) One who continues to hold chattels purchased will not be permitted to deny consideration for his promise to pay for them. Botts v. Spencer, 42 Mo.App. 185; Morrison v. Edgar, 16 Mo. 411; Bohlmann v. Rossi, 73 Mo.App. 315. (5) Subscriber to stock of a corporation can not relieve himself from payment of stock by plea that the subscription was conditional and condition had not been complied with. Wells v. Thompson Mfg. Co., 54 Mo.App. 44; McDermott v. Donegan, 44 Mo. 90; Joy v. Manion, 28 Mo.App. 60; K. C. Hotel v. Harris, 51 Mo. 466. (6) Where a subscription is absolute on its face, no extrinsic or collateral agreement between the subscriber and promoter, or agent, can be shown in evidence to discharge liability. Ollesheimer v. Thompson Mfg. Co., 44 Mo.App. 182; Hotel Co. v. Wright, 73 Mo.App. 242; Wells Co. v. Thompson Mfg. Co., 54 Mo.App. 44. (7) This suit was brought in the name of the real party in interest, perhaps, technically speaking, not the real name of the party in interest. The trial court had a right to amend the record to show the correct name of the real party in interest. Evans-Smith Drug Co. v. White, 86 Mo.App. 540; Parry v. Woodson, 33 Mo. 347; Beattie v. Hill, 60 Mo. 73; Harris v. Railroad, 23 Mo.App. 331; Sheridan v. Nation, 159 Mo. 42; R. S. 1899, secs. 657, 4071, 4079; Rohrbough M. & Co. v. Reed Bros., 57 Mo. 293; Lilly v. Tobbein, 103 Mo. 477; Guenther v. Agolor, ___ Mo.App. ___; 1 Enc. Plead. and Prac., p. 537; Whitehill & Son v. Keen, 79 Mo.App. 129; Hunter v. Kansas City, 158 Mo. 271.

OPINION

BROADDUS, J.

--This action was commenced before a justice of the peace in Cass county, by filing the following writing, viz.:

"$ 100 Daugherty, Mo., May 31, 1898.

"When the lines of the Standard Telephone Company of Missouri are built to Daugherty, Missouri, I promise to pay to the order of Chas. Webster, trustee, at Union National Bank, Kansas City, Missouri, one hundred dollars, value received, with interest at eight per cent per annum, after line reaches the above written town. If default be made in the payment of this note at maturity and the same is collected by legal process, we hereby agree, for the consideration aforesaid, that a sum equal to ten per cent of the total amount found to be due shall be added thereto as liquidated damages, and said damages shall be added to the judgment as part of the principal. (Signed) R. D. Noel."

On said writing were the following indorsements: "Charles Webster, trustee." "Pay to Bank of Harrisonville, or order, for account of First State Bank, Hawkeye, Iowa. M. V. Henderson, Jr., Cashier."

The suit was instituted in the name of the State Bank of Hawkeye, Iowa, but after the case was appealed to the circuit court the plaintiff, on motion, was allowed to change the name of the plaintiff to that of the First State Bank of Hawkeye, Iowa. To this the defendant objected, and refused to further answer in the case. This amendment was made after the case had been heard, but before judgment was rendered. We do not think there was any error in permitting the change, as it did not amount to a substitution of another and different plaintiff, but was merely the correction of a mistake in the name of the plaintiff. The record and evidence had at the trial showed that the name of the plaintiff was the First State Bank of Hawkeye, Iowa, instead of State Bank of Hawkeye, Iowa. Section 657, Revised Statutes 1899, provides for such an amendment. Ward v. Pine, 50 Mo. 38; Beattie v. Hill, 60 Mo. 72.

It is further contended by defendant that his demurrer to the plaintiff's case should have been sustained because the instrument on which the suit is based does not show on its face any cause of action existing in favor of plaintiff and against defendant. The instrument in suit was indorsed by the payee in blank, and by the plaintiff to Bank of Harrisonville for collection, but independent of this evidence of ownership, in Collins v. Burrus, 66 Mo.App. 70, it was held that no statement was necessary in a justice's court, in a suit upon a promissory note, in the name of the transferee against the maker, "the filing of the note being sufficient; and this is the law notwithstanding the note is payable to the order of a person named therein and does not bear the indorsement of the payee, nor show how the plaintiff derived his title."

On the trial plaintiff read the deposition of S. H. Bevins, over the objections of the defendant, to the effect that it was not taken at the place designated in the notice, and this is assigned as error; but as the notice is not to be found in the defendant's abstract of record, we do not know whether his contention is true in that respect or not. Defendant made the...