Wollman v. Loewen

• Decision Date: 21 October 1902
• Citation: 70 S.W. 253,96 Mo. App. 299
• Parties: WOLLMAN v. LOEWEN et al.
• Court: Missouri Court of Appeals

70 S.W. 253

96 Mo. App. 299

WOLLMAN v. LOEWEN et al.

Court of Appeals at St. Louis, Missouri.

October 21, 1902.

PLEADING — ELECTION BETWEEN COUNTS — DIRECTING VERDICT.

1. If a plaintiff declares on the same cause of action in two counts of a petition, and one of the counts is so framed that under a general denial of its allegations the defendant may introduce evidence which shows a complete defense to the other count, after said evidence has been put in, and plaintiff has refused to elect on which count he will ask a verdict, its conclusive effect cannot be ignored by instructing the jury to return a verdict for the plaintiff on the latter count, although the evidence would not have been admissible under the answer thereto.

(Syllabus by the Court.)

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by Morton Wollman against David Loewen and another. Judgment for plaintiff, and defendant Loewen appeals. Reversed.

Lyons & Swarts, for appellant. Boyle, Priest & Lehmann and Mr. Hooker, for respondent.

GOODE, J.

Respondent, Morton Wollman, sued Sigfried Bienenstok and David Loewen on two promissory notes, both for $1,250, dated November 17, 1896, signed on their faces by Sigfried Bienenstok, and on the backs by David Loewen, payable two years after date, with interest at the rate of 5 per cent. per annum. One of said notes was made payable to Morton Wollman or his order, and the other to Henry Wollman or his order; and the latter was indorsed by the payee, Henry Wollman, to respondent, Morton Wollman. The petition was in four counts, the first declaring on the note in which Morton Wollman was payee, against Bienenstok and Loewen, as joint makers; the second, on the note of which Henry Wollman was the original payee, against the defendant in the same capacity (that is, as joint maker), and averring that, after the execution of said note, Henry Wollman indorsed and delivered the same for value to the respondent, whereby respondent became its owner. The third count declared on the note made payable to Morton Wollman, against Bienenstok, as maker, and Loewen, as indorser, and averred that, before the delivery of the instrument, Loewen indorsed his name on the back of it, and became liable for its payment; further, that at its maturity it was presented for payment at the place of payment, to wit, the Continental Bank of St. Louis, and demand of payment duly made, and that on its refusal the note was protested, and notice of the presentment, demand, and nonpayment duly given to Loewen. The fourth count declared on the note of which Henry Wollman was payee, against Bienenstok, as maker, and Loewen, as indorser, and contained averments like the third count, and also an averment that the original payee had assigned and delivered the note for value to the respondent. The answer was likewise in four counts, each of which contained a general denial and a plea of want of consideration, like the following one, taken from the answer to the first count of the petition: "Further answering, said first count or cause of action, the said defendant David Loewen states that, subsequent to the execution by the defendant Sigfried Bienenstok of the promissory note sued on in said first count or cause of action, the said defendant David Loewen signed his name on the back of said note; that neither at the time the said defendant David Loewen signed his name on the back of said note, nor afterwards, was there any consideration paid by or moving from the plaintiff to either the said defendant David Loewen or the said defendant Sigfried Bienenstok, nor was there any consideration paid by or moving from the defendant Sigfried Bienenstok to the said defendant David Loewen; and that by reason of said want of consideration the said defendant David Loewen did not become, and is not, liable for the payment of said note." The answer to the second and fourth counts of the petition also averred that the note given to Henry Wollman was indorsed by him to the respondent after its maturity, without value, and with full knowledge on the part of the respondent at the time of the indorsement that the note was without consideration. The pleadings are thus fully stated because they are important in determining whether the judgment can be sustained.

The evidence shows that Bienenstok was a brother-in-law of the two Wollmans, and also of Loewen, and that, wishing to engage in business, he applied to the Wollmans for a loan of $5,000, which they finally consented to make, provided Loewen would stand good for one-half of it. With the understanding that he would, the Wollmans, who lived in Kansas City, sent four notes, of $1,250 each, to Bienenstok, in St. Louis, on November 17, 1896, two of which notes were payable to Henry Wollman, and two to Morton Wollman, and it was arranged between them and Bienenstok that Loewen should sign one of the notes made to each of said payees. In the letter the Wollmans wrote to Bienenstok, he was requested to have Loewen sign the two notes, either as maker or as indorser, with protest waived. Loewen signed them by writing his name on the back, but declined to waive notice of protest, and the notes were accepted by the Wollmans in that form. They were not paid at maturity, and were protested; but respondent concedes no proof is contained in the record before us sufficient to show that notice was given to Loewen of their dishonor, so as to bind him as an indorser. The main defense relied on in the court below by Loewen, who is the only appellant, was that the notes in suit were signed by him after the transaction had been closed between the Wollmans and Bienenstok, and the latter had received the full amount of the loan, so that there was no consideration for his (Loewen's) signature. His testimony was of that import, and tended to prove a lack of consideration for his undertaking, in whatever capacity it was. At the close of the evidence the court refused to compel respondent to elect on which counts he would ask a verdict, but instructed the jury to return a verdict for the respondent on the first and third...