Wade v. Boone

• Decision Date: 20 June 1914
• Docket Number: No. 13279.,13279.
• Parties: WADE et al. v. BOONE.
• Court: Missouri Court of Appeals

168 S.W. 360

184 Mo. A. 88

WADE et al. v. BOONE.

No. 13279.

St. Louis Court of Appeals. Missouri.

June 20, 1914.

Rehearing Denied July 2, 1914.

1. BILLS AND NOTES (§ 496) — ACTIONS — ADMISSIBILITY IN EVIDENCE.

Possession of a note payable to the order of another is no evidence of ownership in the holder; and hence the holder must prove that an assignment of the note, purporting to be executed by the payee's agent, was authorized before the note is admissible in evidence.

2. PRINCIPAL AND AGENT (§ 23) — ACTION ON NOTE — EVIDENCE.

In an action on a note, evidence held insufficient to show that the one who assigned the note which was payable to order, was the agent of the payee, or was authorized to make the assignment.

3. EVIDENCE (§ 35) — JUDICIAL NOTICE.

The court will take judicial notice that the common law was once in existence in Illinois.

4. EVIDENCE (§ 67) — PRESUMPTIONS.

The common law having once been in force in the state of Illinois, there is a presumption that it has continued to be in force.

5. COURTS (§ 95) — RULES OF DECISION — DECLARATION OF COMMON LAW — LOCAL DECISIONS.

Where a decision turns upon the construction of the common law of a sister state, the courts will follow their local precedents in declaring the rules applicable, but will not apply local statutes.

6. PRINCIPAL AND AGENT (§ 19) — BURDEN OF PROOF.

The burden of proving agency is upon the one asserting it.

7. PRINCIPAL AND AGENT (§ 119) — EVIDENCE OF AGENCY.

The fact that one attempted to act as the agent of the payee of a note and to assign it to a third person is no evidence of his authority.

8. PRINCIPAL AND AGENT (§ 109) — AUTHORITY OF AGENT.

That an agent was authorized to collect a note does not give him authority to assign it.

9. PRINCIPAL AND AGENT (§ 124) — EXISTENCE OF AGENCY — JURY QUESTION.

Where the evidence of an agent's authority is conflicting, the question is generally one for the jury.

10. PRINCIPAL AND SURETY (§ 125) — DISCHARGE OF SURETY.

Where the statute of Illinois, in which state the note in suit was executed and was payable, required the payee to present the note for allowance against the estate of the principal debtor under penalty of discharging sureties, a surety upon the note, where the principal debtor died and the payee failed to present the claim against his estate, is not discharged unless the payee knew of the relation between the makers of the note; both parties apparently signing as principals.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Luther E. Wade and Joseph Wade against Charles Boone. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Mozley & Woody, of Bloomfield, for appellant. Taylor R. Young, of St. Louis, Geo. Munger, of Dexter, and Wammack & Welborn, of Bloomfield, for respondents.

ALLEN, J.

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 "10 per cent. attorney's fees, as liquidated damages." Upon the back of the note appear certain credits for payments made thereon, and the following assignment thereof, viz.:

                              "Paris, Ill., Aug. 28, 1907
                

"For value received I assign the within note to Luther Wade and Joseph Wade without recourse on me.

                         "Ruth C. O'Connor
                              "By J. E. Parrish, Agent."
                

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 $2,899.37, including interest. And it is averred:

"That the laws of the state of Illinois in force on the 22d 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 $2,899.37, 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 $3,189.30.

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, Mo., 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 that his brother and coplaintiff, Joseph Wade, married a sister of such widow. In February, 1907, Edwin Boone died, leaving certain property, real and personal, in the state of Illinois, and the real property above mentioned in Stoddard county, Mo. Administration was had thereupon, and at the close thereof the personal property remaining after the payment of claims and expenses, passed to the widow. On August 28, 1907, and while the estate of Edwin Boone was in process of administration, plaintiffs purchased the note in suit, which was then long overdue. It was then at the Edgar County National Bank, of Paris, Ill., at which place it was payable, and of which one J. E. Parrish was president. Parrish assigned the instrument to plaintiffs, by the foregoing assignment, purporting to act as the agent for Ruth C. O'Connor, the payee therein named.

Plaintiffs did not present the note for allowance against the estate of Edwin Boone, deceased, in the state of Illinois; but it seems that administration was had upon said real estate of Edwin Boone in Stoddard county, Mo., the note there allowed, and the deceased's real estate in said county ordered sold by the probate court for the...