Weinwick v. Bender

• Decision Date: 31 October 1862
• Citation: 33 Mo. 80
• Parties: GEORGE WEINWICK, Respondent, v. JOSEPH BENDER et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 80

GEORGE WEINWICK, Respondent,

v.JOSEPH BENDER et al., Appellants.

Supreme Court of Missouri.

October Term, 1862.

Appeal from Jefferson Circuit Court.

This is a suit brought before a justice of the peace by George Weinwick against Joseph and Nicholas Bender, on a note executed by them to John Shafer, and by him assigned to plaintiff.

The justice rendering judgment against plaintiff, he appealed to the Circuit Court, where judgment was rendered for plaintiff for sixteen dollars and sixty-four cents, from which defendants appeal.

At the trial defendants moved to dismiss for the reason that there was no assignment of the note, and plaintiff's name was endorsed thereon as well as John Shafer's.

The motion being overruled, the plaintiff was allowed to amend by writing an assignment on the note over the signature of John Shafer.

It was in evidence that the note was bought of John Shafer by George Weinwick in the spring of 1857. That Joseph Bender was garnisheed on the 25th day of April, 1857, and judgment rendered May 2d, 1857, against him for fifteen dollars, on said note, in a suit before a justice of the peace, of Martin Shoemaker against John Shafer; and that the money was paid by him on said judgment in October, 1857, after he had notice that the note had been assigned to Weinwick, (the respondent.) It was also in proof that John Shafer and George Weinwick both signed their names to the note the day before the trial, the plaintiff believing it was necessary that his name should be on it in order to recover judgment.

The defendants asked the following instruction, which was refused by the court:

If the court sitting as a jury finds from the evidence that at the time the defendant answered as garnishee in the case of Shoemaker v. Shafer, and at the time judgment was therein rendered against him in said cause, he had no notice that the note sued on in this case had been assigned to the plaintiff, then such judgment against him as such garnishee is a bar to a recovery in this action.J. A. Beal, for appellants.

1. The court erred in permitting plaintiff's counsel at the trial in the Circuit Court to write an assignment on the note over the names of Shafer and Weinwick. It was antedated to February, 1857, so as to deprive him of any defence that he had, or, in other words, to deprive him of the defence of his garnishment and judgment on the 2d of May, 1857, and payment of it. It had a retrospective operation, and was an unjust attempt to make evidence to deprive the defendant of honest defence of payment.

It was deciding that a delivery of a note passed title without an indorsement or assignment. Our statute law has always required an assignment in writing or an indorsement before suit could be brought in the name of any other person besides the payee. (R. C. 1855, p. 320, § 2.)

Parol evidence is inadmissible to prove an assignment. (8 Mo. 355.)

An assignment of a note can only be made in writing. (11 Mo. 636-7.)

II. The court erred in refusing the instruction prayed by defendants. The refusal of the instruction was predicated on the idea that a delivery of the note conferred the same right as an assignment, and further, that notice of the delivery of the note to Weinwick by Shafer was not necessary to be given to Bender before his answer on the garnishment.

A. Green, for respondent.

I. The judgment on the garnishee is no bar to respondent's action; the appellants were bound to know who was the owner of the note before they answered. Joseph Bender only answered; his answer being in point of law untrue, he should bear the loss consequent upon it. (Walden v. Valiant, 15 Mo. 409.)

II. Joseph Bender had notice that Weinwick owned the note before he paid the judgment. He should then have had it enjoined. (Colcord & Hall v. Daggett, 18 Mo. 557;Thompson v. Quarles, 12 Mo. 76; St. Louis Perpetual Ins. Co. v. Cohen, 9 Mo. 421; Funkhouser v. How, 24 Mo. 44.)

DRYDEN, Judge, delivered the opinion of the court.

The written assignment was not a sufficient title to enable the plaintiff to maintain his action, not because of a lack of authority to write the assignment over the name...