Thomson v. Roatcap

• Decision Date: 31 July 1858
• Citation: 27 Mo. 283
• Parties: THOMSON, Plaintiff in Error, v. ROATCAP, Defendant in Error.
• Court: Missouri Supreme Court

27 Mo. 283

THOMSON, Plaintiff in Error,

v.ROATCAP, Defendant in Error.

Supreme Court of Missouri.

July Term, 1858.

1. Unless it is expressed in a promissory note that it is “for value received, negotiable and payable without defalcation,” the maker thereof will be allowed against an assignee of the same every just set-off or other defense that existed at the time of or before notice of the assignment as against the assignor thereof.

Error to Cooper Court of Common Pleas.

This was an action on the following promissory note: “$77.50. Twelve months after date, I promise to pay Wm. W. Norris seventy-seven dollars and fifty cents, without discount or defalcation, for value received, this 1st day of October, 1856. [Signed] John Roatcap.”

The defendant denied knowledge of the alleged assignment of said note by Norris to plaintiff, and alleged that on the first of August, 1857, before said note became due, and before the time of the alleged assignment, he paid to Norris on said note the sum of $75, which he, Norris, agreed should be in full satisfaction of said note.

It appeared in evidence that on the first of August, 1857, defendant paid Norris seventy-five dollars on account of said note, and took Norris' receipt; that on the 9th of September, 1857, plaintiff purchased said note of Norris in good faith, without any knowledge of the payment by defendant thereon. The court, at the request of defendant, gave the following declarations of law: “If defendant paid to Norris the sum of seventy-five dollars on said note before the assignment of said note, and Norris agreed to accept the same in full satisfaction of said note, then the defendant is entitled to a verdict, and if seventy-five dollars was paid only as a credit, plaintiff is entitled to a verdict for balance. 2. The court declares the law to be that the payer of a non-negotiable note may, before notice of the assignment of said note, pay the amount of the same to the payee, and thereby protect himself against a recovery by the assignee. 3. The court declares the law to be, that if the defendant paid the sum of seventy-five dollars on said note before the same was due, and the payee accepted the said amount as a full satisfaction of said note, then said payment amounts to an accord and satisfaction, and the defendant is entitled to a verdict.”

The court rendered judgment for plaintiff for the balance due, after allowing a credit of seventy-five dollars upon the note.

Stephens & Vest, for plaintiff in error.

I. The court erred in refusing the declarations of law asked by plaintiff. (Odell v. Gray, 15 Mo. 337; R. C. 1855 1290; Chitt. on Bills, 266; Sto. on Notes, §§191, 192; Sto on Bills, §188; Smith v. Ashley, 20 Mo. 354.) The court erred in giving the instructions asked by defendant. ( Id.)

Hutchison, for defendant in error.

I. The court properly declared the law of the case. The defendant was entitled to a credit for the amount paid on the note previous to the assignment. (R. C. 1855, p. 322, §3; id. p. 1026, §20.) The note sued on was not...