Wright Investment Co. v. Friscoe Realty Co.

• Decision Date: 25 November 1903
• Citation: 178 Mo. 72,77 S.W. 296
• Parties: WRIGHT INVESTMENT CO. v. FRISCOE REALTY CO. et al.
• Court: Missouri Supreme Court

77 S.W. 296

178 Mo. 72

WRIGHT INVESTMENT CO. v. FRISCOE REALTY CO. et al.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

NOTES—BONA FIDE PURCHASER—NOTICE.

1. Where an indorsed note was given to one in order that he might raise thereon a certain sum, less than its face, and he transferred it before maturity for $800, the fact that it was for $1,250, and that the indorsee had reason to believe one of the indorsers solvent, did not charge him with knowledge of the purpose for which it was delivered to his transferror.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Suit by the Wright Investment Company against the Friscoe Realty Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

C. C. Kidd, for appellants. Wm. G. Schofield, for respondent.

BRACE, P. J.

This is an action upon a promissory note. The petition, omitting caption and corporation averments, is as follows: "That on or about the 27th day of October, 1898, said defendant the Friscoe Realty Company, by description the Friscoe Realty Co., and defendant John C. Hall, executed their certain negotiable promissory note, dated on said day, herewith filed, marked `Exhibit A,' and made a part of this petition, whereby they promised to pay ninety days after the date thereof to the order of Joseph E. Baker and Sidney E. Davis the sum of twelve hundred and fifty dollars ($1,250), for value received, negotiable and payable without defalcation or discount, with interest at the rate of eight per cent. per annum from maturity, payable at No. 304 North Eighth street, St. Louis, Mo.; that thereafter, and before the maturity of said note, said Joseph E. Baker and Sidney E. Davis indorsed the same by writing their names across the back thereof, and delivered the same to defendant W. C. Dines, for value; that thereafter, and before maturity of said note, said defendant W. C. Dines indorsed said note, and delivered the same to plaintiff, Wright Investment Company, for value; that thereafter, and when said note became due and payable according to the tenor and effect thereof, plaintiff caused demand of payment to be made at 304 North Eighth street, St. Louis, Missouri, where said note was by its terms made payable, but that payment thereof was then and there refused, and thereupon plaintiff caused said note to be duly protested, and due notice of said demand and protest to be given to and served upon said Joseph E. Baker and Sidney E. Davis and W. C. Dines, the indorsers of said note. Plaintiff says that it is now the legal holder and owner of said note, and that no part thereof has ever been paid, although often demanded. Wherefore plaintiff prays judgment for said sum of twelve hundred and fifty dollars, the face of said note, for interest, damages, and his costs in this behalf expended. Wright Investment Co., John W. Tristler, Pres., Plaintiff." The defendant Friscoe Realty Company, John C. Hall, Joseph E. Baker, and Sidney E. Davis, answered, admitting the execution of the note sued on; that the indorsements thereon are genuine; that payment thereof was refused at maturity; that the same still remains due and unpaid, and that said note was duly protested as alleged in plaintiff's petition; and for defense to plaintiff's action, in substance, pleaded that said note is without consideration, was made for the accommodation of the defendants Friscoe Realty Company and John C. Hall, and was thereafter by them delivered to said Dines without consideration, and for the sole purpose of enabling him to borrow a small sum of money thereon, of all of which facts the plaintiff had notice; and that no consideration passed from said Dines to plaintiff for said note. Defendant Dines filed no answer.

The case was submitted to the jury upon the following instructions:

For the plaintiff:

"(1) The court instructs the jury that if they believe from the evidence that plaintiff purchased the note in controversy for value, before maturity, they must find their verdict for plaintiff, even though they may believe from the evidence that Dines had no right or authority to sell the note, unless they shall further believe from the evidence that, at the time it purchased said note, plaintiff had notice or knowledge that Dines had no right or authority to sell the note.

"(2) The court instructs the jury that, even though they believe from the evidence that the note in controversy was given to Dines by Hall for the sole purpose of using it as collateral in securing a loan for a smaller amount, yet if they also believe from the evidence that plaintiff purchased said note from Dines before its maturity for a valuable consideration, they must find their verdict for the plaintiff, unless they shall further believe from the evidence that, at the time plaintiff purchased said note, it had notice or knowledge of the circumstances and conditions under which Dines secured and held said note.

"(3) ...