Wade v. Boone
| Decision Date | 20 June 1914 |
| Parties | LUTHER E. WADE et al., Respondents, v. CHARLES BOONE, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Stoddard Circuit Court.--Hon. W. S. C. Walker, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Mozley & Woody for appellant.
(1) There is no evidence in this record even tending to prove that J. E. Parrish was the agent of Ruth C. O'Connor with power and authority as such to assign the note in suit to respondents. Hardesty v. Newby, 28 Mo. 567; Paper Mfg. Co. v. Bank, 199 Ill. 151; Jackson v Bank, 92 Tenn. 154; Goodfellow v. Landis, 36 Mo. 168; Quigley v. Bank, 80 Mo. 289; Smith v Johnson, 71 Mo. 282; Cannon v. Gibson, 162 Mo.App. 386; Groneweg & Schoentgen Co. v. Estes, 144 Mo.App. 418; 31 Cyc. 1373; Graham v. U. S. Savings Institution, 46 Mo. 186; Lime & Cement Co. v Clore, 153 S.W. 542. (2) The note was made payable to the order of Ruth C. O'Connor and the title thereto could be vested in respondents only by indorsement by Ruth C. O'Connor, or by her agent, duly authorized, accompanied by delivery thereof during her lifetime. Laws of Mo. 1905, sec. 30, page 247; R. S. 1909, sec. 10001; R. S. Ill. 1903, sec. 4, chapt. 98; Sublett v. Brewington, 139 Mo.App. 410; Lowrey v. Danforth, 95 Mo.App. 39. (3) This note was executed and, by its terms, made payable in the State of Illinois. The law of that State controls its validity, interpretation and legal effect, and the rights and liabilities of the parties are governed thereby. The failure of respondents to have the note allowed against the estate of Edwin Boone, in the county court of Edgar county, Illinois, within two years after grant of letters of administration on his estate, released appellant from any liability thereon. Kavanaugh v. Royal League, 158 Mo.App. 234; McKinstry v. Railroad, 153 Mo.App. 546; Brown v. Worthington, 162 Mo.App. 508; R. S. Ill. Chapt. 132, sec. 3; Huddleston v. Francis, 124 Ill. 195. (4) The allegations of respondents' petition were denied by the answer of appellant, and the burden of proof rested with respondents. The evidence adduced to sustain this burden and to make a prima-facie case was, with the exception of the note itself, oral. Appellant then had the right to go to the jury on the issue of fact submitted, and it was error for the court to direct a verdict for respondents. Harrison v. Railroad, 50 Mo.App. 332; Davidson v. Railroad, 164 Mo.App. 407; Dyer v. Terrell, 142 Mo.App. 467; McCrosky v. Murray, 142 Mo.App. 133; Link v. Jackson, 158 Mo.App. 63; Hugumin v. Hinds, 97 Mo.App. 346; Seehorn v. American National Bank, 148 Mo. 256; Hilgedick v. Gruebbel, 151 S.W. 731; Hancock v. Railroad, 163 Mo.App. 269. (5) The court should have granted appellant new trial on the ground of newly-discovered evidence, and because it committed error in giving the peremptory instruction for plaintiff. Parker-Washington Co. v. St. Louis Transit Co., 131 Mo.App. 508; Longdon v. Kelly, 51 Mo.App. 572; Standard Investment Co. v. Hoyt, 164 Mo. 124; State v. Bailey, 94 Mo. 311; Furniture Co. v. Warren C. & I. Co., 127 Mo.App. 312; Allen v. Railroad, 151 S.W. 762; State v. Speritus, 191 Mo. 24.
Taylor R. Young, George Munger and Wammock & Welborn for respondent.
(1) There is ample evidence that J. E. Parrish was the agent of Ruth C. O'Connor with power and authority to assign the note in suit to respondents. 31 Cyc. p. 1381. The allowance of ten per cent was proper. 8 Cyc. p. 322; Farmers Nat. Bank v. Barten, 21 Ill.App. 403; Barton v. Farmers & Merchants Nat. Bank, 122 Ill. 352. (2) The title to the note sued on is in respondents. 8 Cyc. p. 227; 8 Cyc. p. 69. (3) The court properly gave the jury a peremptory instruction to find for respondents. (4) The court did not err in overruling appellant's motion for a new trial on the grounds of newly discovered evidence. Motions of this character are regarded by the courts with a jealous eye; should be tolerated, not encouraged, viewed with aversion rather than favor, granted as an exception and refused as a rule. Cook v. Railroad, 56 Mo. 380; State ex rel. v. Railroad, 149 Mo. 635; Blake v. Insurance Co., 133 Mo.App. 18. Defendant made no showing of diligence. This is necessary. Commercial Bank v. Brenkerhoff, 110 Mo.App. 429; King v. Gilson, 206 Mo. 264. Where the new evidence would not affect the result, the case here, there is no ground for new trial. Mayor of Liberty v. Burns, 114 Mo. 426. (5) The Statute of Limitations is no defense to the suit on this note under the evidence in this case and would be no defense to this suit if the appellant had proved that he had signed the note in the capacity of a surety, it not being alleged in defendants' answer that he was at all times a resident of Illinois, for the reason that the statute in question did not extinguish the right, but has reference solely to the remedy. Secs. 11269 and 11270, R. S. 1909, Vol. 3, provide the manner in which appellant could have been discharged if he was as a matter of fact a surety. Williams v. Railroad, 123 Mo. 573; Lyman v. Campbell, 34 Mo.App. 213; Morgan v. Railroad, 51 Mo.App. 523; Carson v. Hunter, 46 Mo. 467.
This action was instituted by respondents in the circuit court of Stoddard county on June 13, 1910, and is for the balance claimed to be due upon a promissory note executed by the defendant, Charles Boone, and his son, Edwin Boone, now deceased. Plaintiffs recovered and the defendant prosecutes the appeal.
Upon the face of the note, defendant and his said son appear to be joint makers; though from the evidence it appears that defendant signed the instrument as surety for his son, who received all of the proceeds thereof. The note provided for the payment of "ten per cent attorneys fees, as liquidated damages."
Upon the back of the note appear certain credits for payments made thereon, and the following assignment thereof, viz.:
The petition declares upon the note, alleging that, on or about August 29, 1907, the payee therein named, for value received, sold, transferred and assigned the same to plaintiffs; and that, after giving credit for the payments made thereon, there remained due and unpaid, at the date of the institution of the suit, the sum of $ 2899.37, including interest. And it is averred "that the laws of the State of Illinois in force on the 22nd day of February, 1905, and since said date, provided for the enforcement of the payment of attorney's fees in said note mentioned, and that said contract being valid in the State of Illinois is valid and enforceable in the State of Missouri." And judgment is prayed for the said alleged balance of $ 2899.37, principal and interest remaining unpaid on the note, and for the further sum of $ 289.93 "liquidated damages and attorney's fees;" aggregating the total sum of $ 3189.30.
The defendant, by his answer, admits "that he signed the note sued on as surety for Chas. E. Boone" (Edwin Boone), but denies generally all of the other allegations of the petition. For further answer, defendant avers that plaintiffs failed to have the note allowed against the estate of Edwin Boone, deceased, in the State of Illinois, within two years after the granting of letters of administration thereupon, and pleads a statute of the State of Illinois, providing that whenever the principal maker of such an instrument shall die, if the creditor shall not present the same to the proper court for allowance, within two years after the granting of letters testamentary or of administration, the sureties thereon shall be released from the payment thereof to the extent that the same might have been collected from such estate. And it is averred that by plaintiffs' failure aforesaid, defendant is released from all liability on the instrument.
By way of reply, plaintiffs deny that they were required by the laws of Illinois to have the note allowed as a demand against the said estate, and plead a ten year Statute of Limitations of the State of Illinois in actions upon bonds, promissory notes, etc. And it is further averred that, if defendant did execute the note as surety for Edwin Boone, neither the laws of Illinois nor of Missouri released defendant from his obligation thereon, for the reason that he accepted and received, as surety, a deed of trust upon the land of said Edwin Boone, in Stoddard county, Missouri; and that "under the laws of the State of Illinois the defendant is liable as principal upon said note and cannot show that he signed the same as surety."
It appears, in point of fact, that when defendant signed the note for the benefit of his son, Edwin Boone, who received the proceeds thereof, he took from his son a deed of trust upon the latter's land in Stoddard county to secure himself against loss in the premises. This deed of trust was in evidence, and recited that it was executed to secure the defendant and keep him harmless on account of having signed the note in question, upon which he had become "security."
In executing the note the defendant and his son dealt with one Terrence Clark, who, it appears, was a brother of Ruth C. O'Connor, the payee in the note, and represented her in the transaction. At the time of the trial below Clark was dead--as was in fact the payee also--and defendant was not permitted to testify as to the transaction in question, in order to show that it was, at the time, known and understood that he signed the note as surety.
It appears that plaintiff, Luther Wade, married a half-sister of the widow of Edwin Boone, deceased; and...
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