Tourse v. Mound City Trust Co., 21966.

• Citation: 52 S.W.2d 611
• Decision Date: 06 September 1932
• Docket Number: No. 21966.,21966.
• Parties: TOURSE v. MOUND CITY TRUST CO.
• Court: Court of Appeal of Missouri (US)

52 S.W.2d 611

TOURSE v. MOUND CITY TRUST CO.

No. 21966.

St. Louis Court of Appeals. Missouri.

September 6, 1932.

Appeal from Circuit Court, City of St. Louis; Frank Landwehr, Judge.

"Not to be officially published."

Action by Lulu Tourse, formerly Lulu Graff, against the Mound City Trust Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

John C. Tobin and Royal L. Coburn, both of St. Louis, for appellant.

Anderson, Gilbert & Wolfort and Henry H. Oberschelp, all of St. Louis, for respondent.

SUTTON, C.

This is an action in replevin to recover possession of a principal note for $1,750, an interest note for $52.50, and a deed of trust given to secure said notes. The principal note and deed of trust were executed on May 5, 1924. The interest note was executed on May 5, 1927. Charles E. Roark and Maude Roark, his wife, are the makers of the notes, and Lulu Graff is the payee, she having intermarried with Tourse since the execution of the notes and deed of trust. The principal note is payable three years after its date. The interest note is payable thirty-six months after its date. At the time the principal note was executed, there were also executed six semi-annual interest notes, each for $52.50, payable respectively six, twelve, eighteen, twenty-four, thirty, and thirty-six months after date. The deed of trust was given to secure this principal note and six semiannual interest notes. It covers residence property at 4539 North Second street, in the city of St. Louis. The principal note was given for part of the purchase price of this residence property, which was sold by plaintiff to the Roarks.

In the sale of the property by plaintiff to the Roarks, she was represented by Mr. Toeniskoetter, a real estate man. On his advice, plaintiff indorsed the principal note. About a month after plaintiff sold her property to the Roarks, she purchased another residence located at 5330 St. Louis avenue. In this latter transaction she became acquainted with A. W. Obermeyer, who acted as her agent in the purchase. After moving to the St. Louis avenue property, plaintiff asked Obermeyer where she could get a safe deposit box. Obermeyer advised her that there was no necessity of her getting a safe deposit box and paying the rental charges thereon, as he could keep her papers securely in his own safe at his office. She thereupon turned over to him the papers in suit here for safe-keeping. At the time of the delivery of the papers to Obermeyer only one of the semiannual interest notes had been paid. Plaintiff testified that, at the time the notes and deed of trust were delivered to her by the Roarks, she wrote on the back of both the principal note and interest notes, the following indorsement: "Without recourse on me. Lulu Graff." She testified that these indorsements were made on the advice of Mr. Toeniskoetter, who suggested that it was better for her to indorse the notes inasmuch as she was a widow and had children and was in poor health. Plaintiff did not have possession of the principal note and deed of trust from the time of their delivery to Obermeyer until May 5, 1927, the date on which the principal note matured. As each interest note fell due, plaintiff would call Obermeyer over the telephone at his office and inform him that Mrs. Roark would call at her home to pay the matured interest note, and would request Obermeyer to bring the note to her home. On each of such occasions Obermeyer would bring the interest note then due to the plaintiff, and she would subsequently deliver it to Mrs. Roark after having received payment thereof and marking the same "paid" on its face.

When the principal note became due, plaintiff asked Obermeyer about the procedure for renewing the note, and he informed her that he would prepare the necessary papers for the renewal. A meeting was arranged at plaintiff's home, which was attended by plaintiff, Obermeyer, and Mrs. Roark, Mr. Roark having died in the interim. At this meeting plaintiff agreed to renew the principal note for a period of three years, and at her direction Obermeyer prepared a series of six interest notes, each for $52.50, payable to the order of Lulu Graff, and maturing respectively six, twelve, eighteen, twenty-four, thirty, and thirty-six months after date. These notes were executed by Mrs. Roark and were delivered to and accepted by plaintiff. Thereupon plaintiff turned over to Obermeyer at his suggestion the principal note, six interest notes, and the deed of trust, for safe-keeping. No notation or indorsement was made on the principal note showing the renewal or extension. The interest notes do not purport on their face to be interest notes. Nor do they refer in any way to the principal note. Neither does the principal note make any reference to interest notes. The interest notes bear what purports to be plaintiff's indorsement. She testified, however, that she did not indorse the interest notes. As these interest notes matured, plaintiff continued her previous practice of calling Obermeyer and informing him that Mrs. Roark would be at her home for the payment of the matured note. On each of such occasions Obermeyer would bring the interest note then due. Plaintiff would receive payment of the note, mark it "paid," and deliver it to Mrs. Roark. Five of the notes were paid in this way. The note payable in thirty-six months was never paid. This interest note and the principal note are the notes sued for in this action.

In the latter part of 1929, Obermeyer, who, it seems, had for some time been engaged in a riot of forgeries and fraudulent transactions in the city of St. Louis, was exposed, indicted, and incarcerated in the state penitentiary, where he remained at the time of the trial of this case.

At the time of his indictment, Obermeyer was indebted to the defendant trust company in the sum of $4,200. This obligation was evidenced by a promissory note dated September 3, 1929, in the principal sum of $4,200, due thirty days after date. At the time this note was given Obermeyer pledged as collateral to secure its payment the principal note and interest note in suit here, and the other unpaid interest notes. Along with these he also pledged another note for $3,300, which was secured by a deed of trust on property at 3857 St. Louis avenue.

It was not until after Obermeyer's exposure that plaintiff learned that he no longer had her note and deed of trust...