Wagner v. Diedrich

• Decision Date: 31 August 1872
• Citation: 50 Mo. 484
• Parties: EGID WAGNER et al., Appellants, v. JOSEPH DIEDRICH et al., Respondents.
• Court: Missouri Supreme Court

50 Mo. 484

EGID WAGNER et al., Appellants,

v.JOSEPH DIEDRICH et al., Respondents.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Buchanan Circuit Court.

Hill & Carter, for appellants.

E. C. Zimmerman, for respondents.

WAGNER, Judge, delivered the opinion of the court.

This suit was instituted by plaintiff on a negotiable promissory note alleged to have been executed by the defendant Diedrich as maker, payable to the order of one Wingerter and indorsed by Wingerter to plaintiff. Wingerter was sued as a co-defendant, but filed no answer. Diedrich, in his answer, sets up as a defense that the note sued upon was signed in blank by him, with the understanding and agreement that Wingerter, his co-defendant, and the plaintiff Wagner were also to sign the note as makers, and that the note was to be negotiated at the German Savings Bank in St. Joseph by Wingerter, and that it was made and executed in satisfaction and payment of a certain promissory note for the sum of $200 then due and payable, signed by the said Wingerter and Wagner, but not signed or executed by the defendant; that, instead of signing and executing the note as makers thereof, Wingerter and Wagner, against the will, wishes and permission of the defendant, executed the note to Wingerter, and Wingerter then fraudulently assigned the note to plaintiff Wagner, all of which said facts plaintiffs well knew and had knowledge of at and before the time of the assignment, and that the defendant signed the note for the accommodation of Wingerter and Wagner, and without any consideration, all of which plaintiffs well knew.

To this answer a replication was filed, and the cause was tried in the court with a jury. The defendant gave evidence tending to sustain the averments made in his answer, and the plaintiffs introduced testimony to support their side of the case. The jury, under instructions of the court, found for the defendant. The court of its own motion instructed the jury that they should find for the plaintiffs the amount due upon the note, with interest, unless they further found from the evidence that the defendant signed the note in blank for the accommodation of Wingerter and without any consideration therefor, and upon the understanding and condition with Wingerter that the same should not be delivered or negotiated unless the same was also signed by the plaintiff Wagner, and that the said plaintiff received the note from Wingerter with knowledge or notice of the same understanding...