Townsend v. Chas. H. Heer Dry Goods Co.
Decision Date | 30 April 1885 |
Citation | 85 Mo. 503 |
Parties | TOWNSEND v. THE CHAS. H. HEER DRY GOODS COMPANY, Appellant. |
Court | Missouri Supreme Court |
Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.
REVERSED.
Francis H. Sheppard for appellant.
(1) Proof of demand at the place stated in the note is essential as between endorsee suing and endorser sued. 1 Danl. Neg. Ins., 478; Parsons on Notes and Bills, 431; Glasgow v. Pratt, 8 Mo. 336; Faulkner v. Faulkner, 73 Mo. 327; Sebree v. Doer, 9 Wheat. 558. Mere knowledge is not notice. 7 Danl. Neg. Ins. 29. (2) Any indorser may give notice to any prior indorser, provided his own liability has been fixed by a correct notice, or if he has paid the note in the hands of a subsequent holder. But a voluntary payment in such case is equivalent to a gift, and does not put the endorser so paying on ground from which he can notify prior endorsers. 2 Danl. Neg. Inst. (1 Ed.) secs. 988, 989, pp. 42 and 43 and cases cited. (3) If the petition does not show that the paper sued on was payable to order or to bearer, a consideration must be pleaded, or else no cause of action is stated. R. S., sec. 663, p. 107. (4) When a corporation is sued on its written contract, made in its corporate name, it is estopped to deny its corporate existence; yet such estoppel does not excuse the pleader from setting up the incorporation together with the accompanying facts. On the contrary the estoppel depends upon the averments. Bliss Code Pl. (1 Ed.) sec. 254, p. 303, sec. 259, p. 307, sec. 260, p. 308; 25 Mo. 17; 60 Mo. 252; 62 Mo. 247; and 70 Mo. 471, are all suits by corporations, in which incorporation was pleaded. See Jones v. Tuller, 38 Mo. 66. In the present case the corporation is defendant. (5) The words “order” and “value received” are all essential in Missouri when declaring on negotiable paper, and if omitted the pleading shows no cause of action on negotiable paper. R. S., sec. 547, p. 85, sec. 548, p. 86; 1 Daniel Neg. Ins. (1 Ed.) p. 85, sec. 108, note 1; Jaccard v. Anderson, 32 Mo. 188; Lindsay v. Parsons, 34 Mo. 422; Simmons v. Belt, 35 Mo. 464; Stilwell v. Craig, 58 Mo. 30; Bailey v. Smock, 61 Mo. 218, 219; Stix v. Matthews, 63 Mo. 371; Bateson v. Clark, 37 Mo. 31, is overruled by Bailey v. Smock, 61 Mo. 218, 219, but even if not, the petion does not contain the word “negotiable” or its equivalent. (6) In an action against the assignor of non-negotiable paper, the pleader must aver that the maker was sued at the first term of court at which suit could have been brought, or else must show a legal excuse for not suing. Lacking these averments, the petition contains no cause of action on non-negotiable paper. R. S., p. 107, sec. 665; Jaccard v. Anderson, 32 Mo. 188; Simmons v. Belt, 35 Mo. 465; Bailey v. Smock, 61 Mo. 219; (7) Exhibits form no part of the petition. Chambers v. Carthel, 35 Mo. 374; Dyer v. Krager, 37 Mo. 603; Deitz v. Corwin, 35 Mo. 376; Curry v. Lackey, 35 Mo. 390; Peake v. Bell, 65 Mo. 224; Baker v. Berry, 37 Mo. 306; Phillips v. Evans, 64 Mo. 17.J. R. Vaughan and S. H. Boyd for respondent.
(1) The presentment for payment of the note sued on to the maker was properly made and proven. 2 Daniel Neg. Ins. 567; King v. Crowell, 61 Me. 244; 1 Parsons on Notes and Bills, 421. (2) The mere fact of giving notice to a person implies that the latter is looked to for payment. 4 Cent. L. J. 267; Story on Notes, sec. 353; 2 Daniel Neg. Ins., sec. 985. (3) The notice may be verbal. Glasgow v. Prattle, 8 Mo. 336; Linville v. Welch, 29 Mo. 203. (4) An immaterial variance in the description of the note, or any kind of misdescription, unless the same be misleading, will not vitiate the notice. McCune v. Bell, 38 Mo. 281; 2 Daniel Neg. Ins., secs. 979 and 980. (5) An agent of the holder or a party to the paper dishonored can give notice of such dishonor. Bk. v. Vaughan, 36 Mo. 90; 4 Cent. Law Jour. 267. (6) An endorser can give such notice to any prior endorsers. Story on Notes, 83 c., 302; Glasgow v. Prattle, 8 Mo. 336; Stix v. Mathews, 63 Mo. 371; Griffith v. Assman, 48 Mo. 66. (7) The instrument sued on imports a consideration, and hence the latter need not be averred. Taylor v. Newman, 77 Mo. 257. (8) A corporation may in general be declared against by what purports to be a corporation name without alleging it to be incorporated or setting forth how it acquired that name, and by appearing and filing an answer and other papers in its corporate name; by giving an appeal bond in its corporate name, and affixing its corporate seal, it admits its corporate charter and is estopped from denying it. Seaton v. Chicago, R. I. & P. R. R. Co., 55 Mo. 416; Smith et al. v. Burlington & Mo. R. R. Co., 55 Mo. 526; Willhouse v. Atl. & Pac. R. R. Co., 64 Mo. 523; Hudson v. St. L., K. C. & N. R. R. Co., 53 Mo. 525; Boone on Corporations, sec. 153, p. 227.Per CURIAM.
This was a suit on the following note:
“$187.28. |
SPRINGFIELD, MO., Oct. 3, 1881.
Sixty days after date I promise to pay to the order of Chas. H. Heer Dry Goods Company One Hundred, Eighty-Seven and 28-100 dollars at my office in Seligman, Mo., value received.
(Signed) |
W. G. NEELY.”
“(Endorsed.) |
Pay to the order of L. S. Moor. |
CHAS. H. HEER DRY GOODS CO.
By Chas. H. Heer, Jr., Secretary and Treasurer.
L. S. MOOR.”
The petition is as follows:
The dry goods company alone answered, and is alone the appellant. Its answer was a general denial. There was judgment for the plaintiff, from which the defendant appealed to this court.
The evidence clearly tended to prove that the transfers of the note were genuine and all before maturity; that when due it was presented by the witness Wilkerson to Neely the maker, for payment, Neely did not pay, but said the note was presented, but he was unable to pay. The witness Wilkerson's testimony then clearly tended to show that he personally gave written notice to Neely and Moor, and sent also by mail copies of the notice to the dry goods company and to Townsend and the First National Bank.
The defendant then read in evidence the notice received by it, as follows:
“SELIGMAN, MO., December 5, 1881.
To the First National Bank, Springfield, Mo.:
Please take notice that one promissory note, drawn by W. G. Neely in favor of C. H. Heer Dry Goods Company, dated on the third day of October, 1881, and due December 5, 1881, payable at his office in Seligman, endorsed by C. H. Heer, L. S. Moor, W. H. A. Townssend, and R. L. McElhany, for One hundred, Eighty-Seven and 28-100 Dollars, the said note having been presented at the request of Adams Express Company, the holder, to W.G. Neely at his office in Seligman, Mo., and payment thereof demanded and refused, is protested for non-payment, and that the holder looks to you for payment thereof and for damages, expenses,” etc.
Upon the application of plaintiff the court gave the following instructions which were objected to by the defendant company: “That in the notice of dishonor of a promissory note, an unintentional variance in the description of the note will not vitiate the notice, if under all the circumstances of the case the notice is not misleading and identifies the note with reasonable certainty.” “That an endorser of a promissory note is a proper and competent person to give notice to any prior endorser of a demand, and the dishonor of payment of a promissory note.”
The following declarations asked by the defendant company were refused:
I. When a note payable at no designated place is presented personally to the maker, and payment refused, the place is not material. Especially if no objection as to place is made by the maker. 1 Danl. Neg. Ins., secs. 638, 643; ...
To continue reading
Request your trial-
Hart v. Harrison Wire Co.
...not the same is negotiable. Jaccard v. Anderson, 32 Mo. 188; Simmons v. Belt, 35 Mo. 461; Lindsay v. Parsons, 34 Mo. 422; Townsend v. Heer Dry Goods Co., 85 Mo. 503. Tested by the rule thus announced in the several cases which we have cited, and which have never been overruled or questioned......
-
Dailey v. Sharkey
... ... and was, as to him, the only proper demand. Townsend v ... Dry Goods Co., 85 Mo. 503. Even if there had been a ... ...