Weaver v. Beard

• Decision Date: 31 March 1855
• Citation: 21 Mo. 155
• Parties: WEAVER, Respondent, v. BEARD & BROTHER, Appellants.
• Court: Missouri Supreme Court

21 Mo. 155

WEAVER, Respondent,

v.BEARD & BROTHER, Appellants.

Supreme Court of Missouri.

March Term, 1855.

1. The assignee of a note not negotiable cannot sue a remote assignor in an action at law. Under the new practice, his petition must set forth the same facts that would formerly have been necessary in a bill in equity.

Appeal from St. Louis Court of Common Pleas.

This was an action to recover the amount of a note, which the petition stated was executed by Kilburn & Masson, payable to the defendants or order, and by defendants endorsed and delivered to Hastings & Mower, who endorsed and delivered the same to the plaintiff. It was further stated in the petition that when the note became due, Kilburn & Masson were insolvent, so that a suit against them would have been unavailing. The note sued upon was not set out in the record. The cause was tried by the court without a jury, and it was found as a fact that the note was endorsed first by defendants and then by Hastings & Mower, at the same time, for the accommodation of Kilburn & Masson, who thereupon took the note and delivered it to plaintiff in payment of another note held by him, upon which also the defendants and Hastings & Mower were parties for the accommodation of Kilburn & Masson. It was further found that the plaintiff had agreed with Hastings & Mower not to sue them, in consideration of which said H. & M. had executed to plaintiff four notes as collateral, two of which had been paid by them, and that the plaintiff had agreed to refund the amount so paid in case he recovered of the defendants.

There was a judgment for the plaintiff for the amount of the note, and the defendants appealed.

T. T. Gantt, for appellants.

Blackburn & McLean, for respondent.

SCOTT, Judge, delivered the opinion of the court.

The nature of the instrument sued upon has been misconceived. It is not a bill of exchange, nor subject to the law governing such paper. It is what is called an assignable note under our statute concerning bonds and notes. The note not being negotiable, an action, according to the principles of the common law, would not lie upon it, there being no consideration, an unsealed note not importing one. Our statute has given an action on such instruments to the payee against the maker, and also to the assignee against his immediate assignor, in the event the note is not paid by the maker after he has been pursued with due diligence. This action, as brought, could only be sustained by the plaintiff against his immediate assignors, Hastings & Mower. The only way in which the last assignee can reach a...