White v. Pierce

• Citation: 213 S.W. 512
• Decision Date: 19 June 1919
• Docket Number: No. 2242.,2242.
• Parties: WHITE v. PIERCE.
• Court: Court of Appeal of Missouri (US)

213 S.W. 512

WHITE v. PIERCE.

No. 2242.

Springfield Court of Appeals. Missouri.

June 19, 1919.

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

Suit by J. W. White against Mollie Pierce. Judgment for defendant, and plaintiff appeals. Affirmed.

John T. McKay, of Kennett, for appellant.

O. Zimmerman, of Kennett, for respondent.

FARRINGTON, J.

The appellant brought suit in the justice court against the defendant for the sum of $37.50. The cause was taken to the circuit court, where the original petition was amended, which petition contained three counts. The first count was brought for merchandise sold and delivered, the second proceeded for a recovery on a note for $37.50, and the third count asks the same amount, and was framed on the theory of the defendant being liable to the plaintiff on the ground of an estoppel and ratification. In the circuit court the defendant prevailed, and appellant brings the cause here on appeal.

The theory on which it was submitted is disclosed by the following instructions given by the court, No. 1 being asked by the plaintiff and No. 2 requested by the defendant:

"(1) The court instructs the jury that if you find and believe from the evidence in this cause that, on or about March, 1911, defendant purchased from plaintiff the cultivator mentioned in evidence through John Polston, and you further find that Polston had authority to purchase same, and you further find defendant accepted said cultivator, and used same and sold same and appropriated the proceeds to her own use, then your verdict will be for plaintiff, unless you find plaintiff agreed to accept said note mentioned in evidence in full payment.

"(2) The court instructs the jury that if you find from the evidence in this cause that the defendant, Mollie Pierce, did not indorse the note traded by one John Polston to plaintiff for a cultivator mentioned in the testimony, and that at the time plaintiff took said note in payment of the cultivator he knew that defendant had not indorsed said note or authorized any one to indorse it for her, and that plaintiff with knowledge of these facts took said note in payment of the cultivator in question, then plaintiff cannot recover in this action."

The facts as disclosed are that one John Polston, as son-in-law of the defendant Mrs. Pierce, took a note which was payable to Mrs. Pierce, signed by several parties, and traded it to the plaintiff for a cultivator. The amount of the note is $37.50, and that is the alleged value of the cultivator. This note was payable to the order of Mrs. Pierce, and it is admitted that she did not personally indorse this note. The facts clearly show that Polston presented the note to the plaintiff for a trade, and the plaintiff told him he could not use the note unless it was indorsed by Mrs. Pierce, the payee and owner. Thereupon Polston asked plaintiff if he thought it would be any harm for him to indorse the note, whereupon plaintiff told him that if he was the agent for Mrs. Pierce he saw no harm coming from him indorsing it. The evidence clearly shows that Polston informed plai...