University Bank v. Major

• Decision Date: 03 June 1935
• Citation: 83 S.W.2d 924,229 Mo.App. 963
• Parties: THE UNIVERSITY BANK, RESPONDENT, v. MERCEDES MAJOR, APPELLANT
• Court: Kansas Court of Appeals

83 S.W.2d 924

229 Mo.App. 963

THE UNIVERSITY BANK, RESPONDENT, v. MERCEDES MAJOR, APPELLANT

Court of Appeals of Missouri, Kansas City

June 3, 1935

Appeal from Circuit Court of Jackson County.--Hon. Emory H. Wright Judge.

Judgment affirmed.

L. L Watts for respondent.

George Horn for appellant.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

The defendant appeals from a judgment for $ 1189.42 debt and $ 1 attorney's fees rendered in the Circuit Court of Jackson County against her as guarantor upon a promissory note executed to plaintiff, a banking corporation.

The petition alleged the execution of the note originally by one Lou Major on or about July 21, 1931, by which he promised to pay the plaintiff bank or order, ninety days after date thereof, the sum of $ 1,000 with interest from maturity at the rate of seven per cent per annum. It alleged further that, thereafter, to-wit, October 16, 1931, prior to the maturity of said note, the defendant, in consideration of plaintiff's extending the time for the payment of said note from October 19, 1931, to January 18, 1932, paid the interest on said note in advance from October 19, 1931, to January 18, 1932, and, by her signature on the face of said note, under the name of the said Lou Major, guaranteed the payment of said note at its maturity as extended; that, on October 16, 1931, plaintiff extended the time for the payment of said note from said date to January 18, 1932; that said note has long since matured and that no part thereof has been paid, either by the maker or by his estate or by the guarantor, and that the whole amount, principal and interest, is now due and unpaid. The prayer of the petition is for judgment against the defendant for the principal sum with interest thereon at the rate of seven per cent per annum from January 18, 1932, and for an attorney's fee of $ 500.

The third amended answer of defendant, upon which the cause was tried, denied generally the allegations of the petition and set up the further defense of fraud in the procurement of defendant's signature and of lack of consideration for the original note and of lack of consideration for her act in guaranteeing the same. It presented the further defense of payment and set up the death of the said Lou Major on October 6, 1931.

The reply was a general denial.

Upon the trial, there was evidence upon plaintiff's part tending to support the allegations of its petition and to show the execution by the deceased Lou Major of the note sued upon, as the original maker, and also the execution of a chattel mortgage securing the payment of the same along with certain other notes owing by him to the plaintiff. There was likewise evidence of the execution of said note by defendant as guarantor. There was evidence tending to show that the said Lou Major died on October 6, 1931; that, on October 16, 1931, the defendant signed her name upon the face of the note, under that of her deceased husband; that, at such time, she paid to the plaintiff the sum of $ 17.50, as the interest on said note to January 18, 1932; and that, at the time of such payment, it was credited upon said note and the time of the payment thereof was thereupon extended by the plaintiff from October 19, 1931, to January 18, 1932, the date to which the interest was paid, and entries were accordingly made upon said note. The note, with the signature of the deceased Lou Major and the defendant and with the entries thereon, was introduced in evidence. Plaintiff also introduced in evidence certain parts of defendant's second amended answer, tending to show an admission by defendant of the payment by her of $ 17.50 to plaintiff on said note, and also certain parts of a deposition given by defendant in the cause, tending to show an admission on her part that the purpose for which said payment was made was to pay the interest on the note to January 18, 1932, and further tending to show her understanding that the payment of the note was by the plaintiff being extended to January 18, 1932, at the time she made such interest payment and at the time she placed her signature on said note, in consideration of the payment of such interest and the placing of her name upon such note as guarantor. It was admitted by defendant's counsel that the signature "Mercedes Major" upon the face of said note, under the signature of Lou Major, her husband, was the signature of defendant and was placed thereon by her on October 16, 1931; and it was further admitted by her counsel that, at that time, she gave the plaintiff a check for $ 17.50. Plaintiff's testimony tended to show that the check for $ 17.50 was in payment of the interest for ninety days in advance or to the date to which the payment of the note was being extended. The evidence further tended to show that plaintiff, on October 16, 1931, extended the time of the payment of the note from its then due date to January 18, 1932, and thereafter forbore the collection thereof or any attempt thereat, until after January 18, 1932. There is no substantial evidence in the record tending to support any of the allegations of defendant's answer or any of the defenses set up therein.

In the submission of the cause to the jury, the court, by instruction, directed a verdict in favor of the plaintiff for the amount of the note and for a reasonable attorney's fee. A verdict was returned by the jury in accordance with the instruction of the court, upon which judgment was in due time by the court rendered for plaintiff. Thereafter, motions for judgment on the pleadings--notwithstanding the verdict--, for new trial, and in arrest of judgment were filed by defendant and overruled.

Upon the trial and before the introduction of any evidence, the defendant made objection to the introduction of any testimony for the reason that the petition did not state facts sufficient to constitute a cause of action, in that it did not allege a sufficient consideration for the guaranteeing by defendant of the payment of the note or allege that the defendant was the guarantor of said note and its payment.

The first assignment of error and point made thereon by defendant in her brief is with respect to the overruling of such objection by the court. An objection of this kind, where made after the cause is taken up for trial and without the petition's having been attacked by demurrer or otherwise, is not looked upon with favor by the courts. It fails to serve any useful purpose. In Grindstaff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702, the Supreme Court denounced it as a procedural archaism that might well be consigned to "the limbo of forgotten things." A petition is always to be held good against such objection so made in such manner if it appears by implication, from a reasonable consideration of the allegations of the petition made, that the omitted matters complained of, if any, were intended to be made by the pleader. [Thompson v. Lyons, 281 Mo. 430, 220 S.W. 942; Conrad v. Allis-Chalmers Mfg. Co. (Mo. App.), 73 S.W.2d 438.]

The petition in this case first alleged the execution by Lou Major on July 21, 1931, of the note sued upon and then proceeded upon the theory and alleged, "That thereafter, to-wit, October 16, 1931, prior to the maturity of said note, the defendant, in consideration of the plaintiff extending the time for payment of said note from October 19, 1931, to January 18, 1932, paid the interest on said note in advance from October 19, 1931, to January 18, 1932, and, by her signature on the face of said note, under the name of the said Lou Major, guaranteed the payment of said note at its maturity, as extended; that on October 16, 1931, plaintiff extended the time for payment of said note from October 19, 1931, to January 18, 1932."

Such allegations are sufficient not only to meet the objections of defendant but are sufficient in all respects to state a cause of action against the defendant upon the theory that she, upon a sufficient consideration, agreed to guarantee the payment of the note. An extension for some definite period beyond its due date of the time for the payment of an obligation is a sufficient consideration to support a contract with a third party for the payment of such obligation.

In Babel v. Ransdell (Mo. App.), 294 S.W. 734, it is said:

"It is well established that one who signs a promissory note . after it has been executed, and after the consideration has passed between the original parties thereto, incurs no liability on the note, unless there is a new consideration. [McMahan v. Geiger, 73 Mo. 145, 39 Am. Rep. 489; County of Montgomery v. Auchley, 92 Mo. 127, 4 S.W. 425; Williams' Adm'r v. Williams, 67 Mo. 661; Eitel v. Farr, 178 Mo.App. 367, 165 S.W. 1191; 8 C. J. 211, 213.]

"Respecting the question of whether there was a new consideration for appellant's signature, we are mindful that it is not necessary that the consideration for a promissory note pass directly to the maker, but it suffices if it has passed to a third party. [Rudolph Wurlitzer Co. v. Rossmann, 196 Mo.App. 78, 190 S.W. 636; Adams v. Huggins, 78 Mo.App. 219.]

"There is no pretense that appellant received any part of the sum of money evidenced by the note in question. However, there was substantial evidence that she signed the same for the purpose of obtaining an extension of time in which her nephew Raines, might pay. Such an agreement to forbear, either absolutely or for a reasonable time, to institute proceedings to enforce a demand, is a sufficient consideration to support an...