Wilson v. Huston

• Citation: 13 Mo. 146
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 January 1850
• Parties: S. & W. WILSON v. HUSTON.

13 Mo. 146

S. & W. WILSON

v.HUSTON.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO COLE CIRCUIT COURT.

HAYDEN, for Plaintiff. 1. The court erred in refusing to give and declare the law of the case to be as moved by plaintiffs in each, all and every of their said instructions, which were rejected by the court. 2. The Circuit Court erred in the said three instructions, voluntarily given by the court. 3. The finding of the count was against law and evidence, and the court erred in refusing to set aside the non-suit and to grant plaintiffs a new trial of the cause under the circumstances of the case.

ABELL & STRINGFELLOW, for Defendant. 1. The evidence as to the irrelevancy of the maker of the note sued on was immaterial, the note being negotiable. 2. To make the indorser liable, a notice of demand and non-payment must be shown, or it must appear that the indorser having no notice, with a full knowledge of his rights, afterwards promised to pay the debt. 3. The only evidence in this case, even remotely bearing upon this point, is that of Smallwood. He testifies that nine months after the assignment, and three months after the note became due, and a demand should have been made, the defendant, as agent for the plaintiffs placed the note in his hands for suit; that a receipt was given to the plaintiffs and a suit, brought in their name by Smallwood, as the attorney, under the directions of defendant as agent for plaintiffs. There is no pretense of any promise by defendant, even impliedly, to pay the debt. There is no evidence of any means used by defendant to secure himself or in any manner to interfere as a party interested in the matter; much less of any waiver of his rights or of any promise to pay with knowledge of his rights. 4. If the question of notice and waiver of notice be held to be a question of law, the Circuit Court has properly decided the law by refusing the 9th instruction asked by the plaintiff. 5. The bill of particulars and the assignment both hold the plaintiffs to their remedy upon an assignment made before the maturity of the note. The bill of particulars alleges an indorsement on or about the 22nd of May, 1843. The note was due on the 1st of September, 1843, and the indorsement is without date. 6. There is no pretense of evidence that defendant ever saw the note from its indorssment in May, until the 27th of December, 1843, four months after its maturity, when, as agent for plaintiffs, he placed it in Smallwood's hands for suit. Bailey on Bills, 137; 8 Wend. 600; 5 Mass. R. 339; Story on Bills, 318-19, 320; 12 Mass. R. 52; 7 Mass. R. 449, 483; 9 Mass. R. 483; 4 Mass. R. 311; 8 Pick. 1; 17 Pick. 332; 4 Watts & Serg. 328.

NAPTON, J.

This was a suit against Huston as indorser of a negotiable note, made payable to him by J. W. & P. L. Smith. The case was submitted to the court without a jury. Upon the trial, the plaintiffs read the deposition of one Smallwood, who stated that some time in December, 1843, the defendant, Huston, placed in his hands for collection the note sued on, for which the witness gave his receipt; that said Huston stated, that he had transferred the note to the plaintiffs; that the makers of the note resided in Ray county; that the witness (who was a lawyer) immediately instituted suit against the makers in the Ray Circuit Court, and obtained a judgment; that this suit was conducted from the beginning to its termination, under the direction of said Huston; that said Huston and the deponent boarded at the same house in Lexington, and had frequent conversations concerning said suit; that Huston had full knowledge of the manner in which said suit was conducted, and of every step taken in its progress. The deponent was under the impression, that Huston communicated to him as a reason why he undertook to have said note collected, that the makers were in a failing condition, and he apprehended a loss, if any delay occurred. The deponent further stated that he had no conversation with the Wilsons (plaintiffs), or either of them, touching the note or suit, during its progress. The receipt which this witness executed to Huston, when he received the note for collection, is as follows: “Received from Messrs. S. & W. Wilson, for collection, by the hands of James Huston, a note drawn by James W. & P. L. Smith, for the sum of one hundred and fifty dollars, payable twelve months after date, dated September 18, 1842, bearing interest from date, at ten per cent., drawn payable to James Huston, and by him assigned to S. & W. Wilson. December 27, 1843.

L. W. SMALLWOOD.”

This was the only evidence in the case touching the question of notice or waiver of notice on the part of Huston.

The plaintiffs asked thirteen instructions, most of which were refused. The court declared the following to be the law applicable to the case: “The law of this case is, that if the plaintiffs have not given sufficient evidence to show that the note in controversy was indorsed at a different time from that stated in their bill of particulars, it ought to be considered as true that said note was indorsed at the time mentioned in the bill of particulars. If the note in question was indorsed before its maturity, the defendant was entitled to notice of the non-payment thereof by the makers within a reasonable time after such note had been presented and payment refused. If the note in question was indorsed before its maturity, the plaintiffs in order to relieve themselves from the necessity of giving notice to the defendant of the non-payment thereof, must show a waiver of the right on the part of Huston, either express or implied, to demand such notice, or a promise to pay such note after its dishonor with a knowledge of the facts of its presentation for payment, and dishonor or failure of plaintiffs to present such note for payment.” The court also gave the 4th, 5th, 7th and 8th instructions as requested by the plaintiff, which were as follows: 4th. “If the court find from the evidence, that at the time the note was assigned by the defendant to the plaintiffs, it was the understanding or agreement between them, that the defendant was to collect the money therein specified for the plaintiffs, and that the defendant to that end caused the suit to be instituted in the Ray Circuit Court, and prosecuted the same to judgment, execution, &c, as set forth in said record and proceedings of...