Williams v. Kessler

• Decision Date: 03 May 1927
• Docket Number: No. 19610.,19610.
• Citation: 295 S.W. 482
• Parties: WILLIAMS v. KESSLER.
• Court: Missouri Court of Appeals

295 S.W. 482

WILLIAMS v. KESSLER.

No. 19610.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action in justice's court by Reaf F. Williams against Hyman Kessler and others. After judgment for plaintiff, named defendant alone appealed to Circuit Court. From order granting named defendant's motion for new trial after trial de novo in Circuit Court in which verdict was directed for plaintiff, plaintiff appeals. Affirmed, and cause remanded.

Vourdon Fricke, Frank Lee, and Gatewood & Lee, all of St. Louis, for appellant.

Greensfelder & Grand and E. P. Rosenberger, all of St. Louis, for respondent. [Oj] BENNICK, C.

This action was instituted by plaintiff in a justice's court, in the city of St. Louis, Mo., by the filing therein of a statement seeking to recover on four promissory notes, each for the sum of $100. The signatures of B. F. Austin and Rachel Austin appeared on the face of the notes, and on the back of each was the indorsement of defendant Kessler. Originally, both Mr. and Mrs. Austin were also named as parties defendant. The judgment of the justice was for plaintiff and against the Austins, but in favor of defendant Kessler. From the judgment against them the Austins did not appeal. Plaintiff, however, appealed, to the circuit court from the judgment in favor of defendant Kessler, and in a trial de novo in the circuit court a peremptory instruction was given to find for plaintiff, in compliance with which the jury returned a verdict in favor of plaintiff, and against defendant Kessler, in the sum of $535.01. Defendant's motion for a new trial, duly filed, was subsequently sustained by the court, from which order plaintiff has perfected this appeal.

Defendant Kessler filed no written answer or other written pleading in the justice's court.

Plaintiff made his case by offering in evidence the four notes in question, and defendant admitted his indorsement of the same. After plaintiff had rested, the court announced that it had sustained an objection previously made to the introduction of any testimony on the part of the defendant as to his defense, upon the theory that the status of the pleadings did not warrant the making of any defense whatsoeyer. Defendant thereupon offered to prove that, contemporaneously with his indorsement of the notes in question, plaintiff had delivered to him a letter reciting the execution of the notes and the fact that they were secured by a chattel mortgage, and agreeing that, in the event of the makers' failure to pay any one of said notes within 60 days after the maturity thereof, plaintiff would with reasonable promptness foreclose on said chattel mortgage and apply the sum realized from the sale of the property to the satisfaction of the notes, and that if there was any deficit he would look to defendant for the payment of the remaining unpaid balance. Defendant further offered to prove that this letter had been prepared by plaintiff's attorneys; that on May 4, 1923, a letter had been sent to defendant by plaintiff's attorneys advising that one of the notes had not been paid by the makers, and that it would not be possible for plaintiff to foreclose on the chattel mortgage until after the following June 3d; that at no time since the maturity of the notes in question had the chattel mortgage been foreclosed; that in June and July, 1923, the reasonable value of the property described in the chattel mortgage, executed by the principal makers of the notes to plaintiff, was from $4,000 to $5,500; and that defendant relied upon the security of this mortgage, upon the letter given to him by plaintiff at the time he indorsed the notes, and upon the subsequent communication from plaintiff's attorneys, dated May 4, 1923.

There is but one assignment of error— that the court erred in granting defendant Kessler a new trial, for the reasons: First, that under section 1415, R. S. 1919, the notes in suit stood confessed in the absence of a sworn denial of the execution thereof; and, second, that the offer of proof stated no defense.

Section 1415, R. S. 1919, provides:

"When any petition or other pleading shall be founded upon any instrument in writing, charged to have been executed by the other party and not alleged therein to "be lost or destroyed, the execution of such instrument shall be adjudged confessed, unless the party charged to have executed the same deny the execution thereof, by answer or replication, verified by affidavit."

It is true that no denial under oath, and in fact no pleading of any kind, was filed by defendant. However, we do not regard such fact as controlling upon the issues before us, for the reason that the statute says no more than that the execution of the note shall be adjudged confessed, unless the party charged to have executed the same shall deny the execution thereof, by answer or replication, verified by affidavit. In other words, by a failure to deny the execution of the instrument in the manner designated by statute, the defendant admits the genuineness of the signatures, and also the delivery of the instrument; the signing and delivery both being a part of the execution. Hart v. Harrison Wire Co., 91 Mo. 414, 422, 4 S. W. 123; Wollman v. Loewen, 96 Mo. App. 299, 305, 70 S. W. 253; Johnson v. Woodmen of the World, 119 Mo. App. 98, 102, 95 S. W. 951; George T. Smith Middlings Purifier Co. v. Rembaugh, ...