Wolf v. Wuelling
| Citation | 130 S.W.2d 671,233 Mo.App. 1144 |
| Parties | LAURA GAUME WOLF, EXTX., APPELLANT, v. GEORGE WUELLING ET AL., RESPONDENTS |
| Decision Date | 08 May 1939 |
| Court | Court of Appeals of Kansas |
Rehearing Denied 233 Mo.App. 1144 at 1162.
Appeal from the Circuit Court of Osage County.--Hon. R. A. Bruer Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Marion Garstang, Leslie B. Hutchison, James Booth and James L Anding for appellant.
(1) A directed verdict for plaintiff should be given where there is not any competent evidence of affirmative defensive matter offered by makers. R. S. Mo. 1929, sec. 2657; Bross v. Stancliff, 240 S.W. 1091; Furth v. Cafferata, 240 S.W. 476; Ensign & Co. v. Crandall, 207 Mo.App. 211; Cahill v. Byng, 30 S.W.2d 768; Cox v. Higdon, 67 S.W.2d 547; Aetna Investment Corp. v. Barnes, 52 S.W.2d 221; Downs v. Horton, 287 Mo. 414; Meinholtz v. Lampert, 101 S.W.2d 503; Skinner v. Johnson, 74 S.W.2d 71; Natural Bridge Trust Co. v. Hannibal, 109 S.W.2d 901; Manheimer v. LeRoy, 28 S.W.2d 381. (a) In considering the question of a directed verdict only the competent or admissible evidence should be considered. Cox v. Higdon, 67 S.W.2d 547; Riggs v. Met. Street Railway, 216 Mo. 304; Manheimer v. LeRoy, 28 S.W.2d 379; Metropolitan Discount Co. v. Indermuehle, 272 S.W. 1037; C. I. T. Corp. v. Bryan, 27 S.W.2d 441; Hamlin v. Hawkins, 61 S.W.2d 349; 8 C. J. 366. (2) Defendants' answer not having been verified, the execution and delivery of the note was thereby confessed, and upon proof of endorsement and ownership by plaintiff, made a complete prima-facie case. R. S. Mo. 1929, sec. 965; Smith Purifier Co. v. Rambaugh, 21 Mo.App. 390; Franklin Bank v. Equipment Co., 217 Mo.App. 131, 273 S.W. 197; Northside Finance Co. v. Sparr, 78 S.W.2d 892; Peoples State Bank v. Hunter, 264 S.W. 54; Cahn v. Miller, 106 S.W.2d 495; Waugh v. McCormick, 93 S.W.2d 77. (a) Where the facts as to the delivery of the note were undisputed their legal effect was simply a question of law for the court. Rogers v. Carey, 47 Mo. 232. (b) The evidence in this case, undenied, was sufficient to prove the endorsement by Paulsmeyer as cashier of the bank, delivery to the Gaume estate, and ownership by the Gaume estate of the note sued on. Lueckenhoff v. Wuelling, 112 S.W.2d 357. (3) Every negotiable instrument is deemed prima facie to have been executed for a valuable consideration, and every person whose signature appears thereon, to have become a party thereto for value. R. S. Mo. 1929, sec. 2653; Cahn v. Miller, 106 S.W.2d 495; Mills Organization v. Bell, 37 S.W.2d 680. (a) Where a note is knowingly given to cover a shortage in a bank, this affords a valuable consideration for giving the note. Bank v. Hunter, 264 S.W. 54. (b) If there was an unpaid balance on the $ 2000 note, this was a valuable consideration for a note given for payment of the balance. Wislizenus v. O'Fallon, 91 Mo. 184, 3 S.W. 837. (c) Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time. R. S. Mo. 1929, sec. 2655. (d) It is an ancient rule of law, often denounced, but always followed, that though a creditor agrees to accept less than his matured debt in full payment, he may nevertheless collect the balance. Enright v. Schaden, 242 S.W. 93. (e) And this rule applies even though such payment was made by a stranger and afterwards, within a reasonable time, repudiated by the debtor giving his note for the balance due. Enright v. Schaden, 242 S.W. l. c. 93; 1 C. J. 535; Restatement, Law of Contracts, sec. 421. (4) An accommodation party is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party. R. S. Mo. 1929, sec. 2658. (5) A holder is prima facie a holder in due course when in possession of a note "payable to order" which has been endorsed and is in the possession of the plaintiff. R. S. Mo. 1929, secs. 2650, 2662, 2687; Lueckenhoff v. Wuelling, 112 S.W.2d 357, l. c. 363; Chandler v. Hedrick, 187 Mo.App. 664; Ashbrook v. Letcher, 41 Mo.App. 369; Million v. Ohnsorg, 10 Mo.App. 432. (6) The endorsement is deemed prima facie to have been effected before the note was overdue. R. S. Mo. 1929, sec. 2673. (7) Under the facts of this case plaintiff was presumed to have taken the note in good faith for value, before maturity, without notice. Baade v. Cramer, 278 Mo. 516, l. c. 526; 8 C. J., sec. 1289, page 980. (8) It was not necessary that defendants should have shown that no consideration passed to some one of them, but also that no consideration had passed to any one of them. Manheimer v. LeRoy, supra. (9) It was error for the court to give to the jury at the request of defendants, its Instruction A in that, (a) said instruction ignored the issue as to whether or not the parties had knowledge of such dual agency, if any. Robinson v. Jarvis, 25 Mo.App. 421; Fred Boswell Post v. Farmers State Bank, 61 S.W.2d 761; T. J. Moss Tie Co. v. Stamp, 25 S.W.2d 138; Fuchs v. Leahy, 9 S.W.2d 897; Lesser v. Railway Co., 85 Mo.App. 326. (b) Said instruction purported to cover all the issues in the case and directed a verdict for defendants, thereby improperly ignoring the issue as to whether or not plaintiff was a holder of said note in due course, ignoring the issue as to whether or not plaintiff was the owner of said note, ignoring the issue as to whether or not there was a consideration for said note, and ignoring the issue as to whether or not said note was given for the balance due on said $ 2000 deed of trust, and ignored the issue as to whether or not there was a consideration for any of the makers to sign said note. Griffith v. Conway, 45 Mo.App. 574; Clark v. Hammerle, 27 Mo. 70; Lesser v. Ry. Co., supra; Booth v. Loy, 83 Mo.App. 603. (c) That the facts hypothesised in said instruction were not pleaded as a defense. 11 C. J. S., par. 647, page 20. (10) Instruction B given at the request of defendants, was erroneous in that there was no evidence upon which to base it, there being no evidence that said offer was made as a matter of compromise. Barr v. Railroad Co., 37 S.W.2d 927, l. c. 930; 64 C. J., page 761, par. 657. (11) Instruction C given to the jury at the request of defendants, improperly instructed the jury that the burden of proving no consideration for the note was on plaintiff. Manheimer v. LeRoy, supra; Northside Finance Co. v. Sparr, 78 S.W.2d 892; Thompson v. McCune, 63 S.W.2d 41; Farmers Bank of Billings v. Schmidt, 25 S.W.2d 525; C. I. T. Corp. v. Byrns, 38 S.W.2d 750; Citizens Bank of Edina v. Kreighauser, 244 S.W. 107; Ensign & Co. v. Crandall, 207 Mo.App. 211; Downs v. Horton, 287 Mo. 414; 11 C. J. S., page 64, par. 654 (f). Said instruction improperly imposed on plaintiff the burden of proving that she was the holder in due course of said note, and that she acquired the same for value. Bank of Pope v. Wood, 189 Mo.App. 62; Citizens Bank of Edina v. Kreighauser, 244 S.W. 107; Natual Bridge Trust Co. v. Hannibal, 109 S.W.2d 901; Downs v. Horton, 287 Mo. 414; State ex rel. Sanders v. Arnold, 30 S.W.2d 1015; State ex rel. Strohfeld v. Cox, 30 S.W.2d 462. Said instruction submitted to the jury a question of law in that it required the jury to find that the bank obtained title to said note for a valuable consideration, in good faith, before maturity date of said note, August 29, 1935, without notice of any prior equities, interest or infirmities, if any, in this, that said instruction improperly ignored the facts and improperly submitted a question of law to the jury for their determination. Jordan v. City of Hannibal, 87 Mo. 673; Carroll v. Campbell, 110 Mo. 557; Woods v. Campbell, 110 Mo. 572; Kendall Boot & Shoe Co. v. Bain, 46 Mo.App. 581; Kincaid v. Estes, 262 S.W. 399; Furth v. Cafferata, 240 S.W. 476; Pattonsburg Savings Bank v. Koch, 255 S.W. 583. Such error cannot be cured by proper instructions by the opposing party. (12) A verdict cannot stand unsupported by any substantial evidence. Evans v. Massman Const. Co., 122 S.W.2d 924.
H. Balken Bush for respondents.
(1) Appellant's purported statement wholly fails to give the court a clear and concise statement of the material facts of the case, and appellant's statement does not fairly state the evidence adduced in the trial of the cause. Therefore the appeal should be dismissed. Sec. 1060, R. S. Mo. 1929; Mason v. Warnecke, 226 Mo.App. 1244; Euler v State Highway Comm., 227 Mo.App. 755; LeClair v. LeClair, 77 S.W.2d 862. (2) Appellant at the outset is confronted with a complete failure of proof of title of the note sued upon. Plaintiff's petition alleges for its cause of action that the note sued upon was obtained by proper indorsement from the Peoples Bank of Chamois. The stipulation of both parties to this action made at the commencement of the trial conclusively shows that at all times that P. J. Paulsmeyer was acting as administrator of the estate of Edward Gaume, he was acting as cashier for the Peoples Bank of Chamois. At least two parties are required to a contract. The indorsement was utterly void. Watson Seminary v. County of Pike, 149 Mo. 69, 73; Hill v. Rich-Hill Coal Co., 119 Mo. 22-24; Robertson v. Bank of Vandalia, 66 S.W.2d 193; Exchange Bank of Frankfort v. McCune, 72 S.W. 175. Before the transferee of a note payable to order the person claiming rights to the instrument must prove a valid indorsement. Scott v. National Bank, 119 S.W.2d 929-937. (3) The burden of proof was on plaintiff to prove that it was a holder in due course in order to escape the defense of no consideration; the plaintiff being unable to make such a showing, the defendants were entitled to prove there was no consideration for the note. Huttig v. Brennan,...
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