I.
Sherwood, C. J.
The note in suit was declared on as made, executed and delivered to O. O. Bland, as one of the executors of the estate of R. P. Eaulkner; that offered in evidence in support of such allegation was, according to its terms, made and executed to J. B. Eaulkner and C. C. Bland, executors. The objection to the introduction of the note in evidence was consequently well taken, and should have prevailed. This is not a case of mere statutory variance, such as may be cured by failure to make the requisite affidavit, but a failure of proof in a vital particular ; the allegation of one cause ol action and the introduction of evidence to establish another and very different cause. Waldhier v. H. & St. R. R. Co., 71 Mo. 514.
II.
There are other objections equally serious connected with the petition. The note offered in evidence is made payable at the Security Bank, while the one declared on does not mention any place of payment; the allegata and probata, therefore, do not correspond. Mr. Justice Story [336]*336says : “ Nothing is better established, both on principle and authority, than that if the place where a note is payable is omitted in the declaration, it is fatal; for the evidence produced does not support the declaration. There is a variance in the essence of the instrument as declared on and as proved.” Sebree v. Dorr, 9 Wheat. 558. The note in suit is payable, as already stated, at a particular place, and there is no allegation in the petition of presentment at such place, demand of payment and of notice to the indorser. His contract, like his liability, is only conditional. The condition precedent to his conditional liability becoming absolute is that the holder demand payment at the place designated, and duly notify him of any default. The plaintiffs’ title to recover, therefore, depends upon averment of performance of the condition precedent. The petition before us containing no such averment, its absence is fatal to any recovery against the indorser.
III.
If the petition had contained the proper allegation just mentioned as to presentment, etc., it seems that the authorities preponderate, at least in this country, in favor of the view that evidence excusing such presentment or showing a waiver of demand and notice, as ex gr., a distinct promise to pay made after maturity by the indorser, with full knowledge, etc., would be admissible in support of the usual averment. 2 Chitty Plead, (16 Ed.) p. 79 n.
IY.
But even had the petition been properly drawn in the foregoing particulars, the certificate of the notary would have been insufficient in support thereof; and this is apparent for this reason : By a legislative oversight, although section 20, (1 Wag. Stat., 218,) makes- a notarial protest evidence of a demand and refusal to pay, section 50, (lb., 598,) only makes such protest evidence of demand, refusal and notice of dishonor, when verified by affidavit, so that [337]*337the certificate of the notary in the present instance not being verified as required, could be evidence, even if otherwise unobjectionable, only of demand and refusal, and not of notice. The certificate is also objectionable in that it fails to state how, or in what way, the notary gave notice to Malcolm, the indorser. Had it stated that the notary had mailed to Malcolm, at the proper post office, the usual papers, this would have been sufficient. Pier v. Heinrichshoffen, 67 Mo. 163. The certificate is otherwise unobjectionable. It shows due diligence on the notary’s part. He went to the locality designated for payment. Not finding the Security Bank at the place it formerly occupied, he did all he could do by presenting the note for payment to the officers in charge of a bank occupying the rooms formerly occupied by the Security Bank. In such circumstances no demand on the makers was necessary. 2 Daniel Neg. Inst., § 1119.
V.
As this case must go back for re-trial, it is unnecessary to discuss the sufficiency of the evidence to establish Malcolm’s liability as indorser. We may, however, venture the observation that in a recent case in this court, we held that “if the proper steps are not taken to fix the indorser, and thus convert his conditional liability into an absolute engagement, he is discharged, unless, with a full knowledge of all the facts of his release, he promises to pay the debt, or does gets from which such promise can be clearly and unmistakably inferred.” Long v. Dismer, 71 Mo. 452. Not a few authorities may be found announcing that an indorser will not be chargeable after laches by the holder, unless upon his express promise to pay. 2 Greenleaf Ev., § 197, and cases cited. Some of the cases announce, on the other hand, a very lax rule in this particular, making almost any act or expression of the indorser sufficient to charge him. 1 Parsons Notes and Bills, 616. We are unwilling to follow them.
[338]*338VI.
Malcolm’s claim is, that he is only an accommodation indorser. There is no doubt that such an indorser, while the paper remains in first hands, may successfully plead and prove such fact as a defense. 1 Parsons Notes and Bills, 183,184, and cases cited. But though such a defense is good as between the accommodation indorser and the person to whom he grants the use of. his name, yet the defense becomes unavailable when the note passes into other hands. Miller v. Mellier, 59 Mo. 388. We incline to the opinion that the paper has thus passed, and that Bland is a holder for value within the meaning of the authorities. Story Prom. Notes, § 195. This was certainly the result intended to be accomplished by all the parties, and we are not disposed to allow them to withdraw from the consequences of their own voluntary act and to proclaim that act a nullity.
VII.
Although a person who, before delivery thereof, indorses a note of which he is neither payee nor indorsee, is prima facie one of the makers of such note, parol evidence is always admissible to show in what capacity his signature was given. Kuntz v. Tempel, 48 Mo. 71; Mammon v. Hartman, 51 Mo. 168; Seymour v. Farrell, 51 Mo. 96; Cohen v. Dutton, 60 Mo. 297. The first declaration of law given at plaintiffs’ instance is, of consequence, erroneous.
VIII.
If Malcolm, as the petition alleges, was an indorser of the note, he was not a surety, and if not, had no right to notify Bland to bring suit, and is not discharged because of any failure of the latter in that particular, nor because of the dismissal of such a suit after its commencement. The second declaration of law asked by defendant Malcolm'was, therefore, properly refused. Clark v. Barrett, 19 Mo. 39.
[339]*339IX.
The authorities for defendants abundantly show that a party bound in a contract with others, whereby he becomes both obligor and obligee, cannot maintain on such contract an action at law; cannot, in a word, sue himself. This principle, however, does not apply, even at common law, except where the contract is joint, and not where it is (as are all contracts in this State) both joint and several. Thus, where an action was brought by A and B, payees of a joint and several note against C, one of the makers, and it w-as pleaded that the note was made by B, one of the plaintiffs, the defendant and another, and upon argument, the case of Moffatt v. Van Millengen, 2 Bos. & P.
Free access — add to your briefcase to read the full text and ask questions with AI
I.
Sherwood, C. J.
The note in suit was declared on as made, executed and delivered to O. O. Bland, as one of the executors of the estate of R. P. Eaulkner; that offered in evidence in support of such allegation was, according to its terms, made and executed to J. B. Eaulkner and C. C. Bland, executors. The objection to the introduction of the note in evidence was consequently well taken, and should have prevailed. This is not a case of mere statutory variance, such as may be cured by failure to make the requisite affidavit, but a failure of proof in a vital particular ; the allegation of one cause ol action and the introduction of evidence to establish another and very different cause. Waldhier v. H. & St. R. R. Co., 71 Mo. 514.
II.
There are other objections equally serious connected with the petition. The note offered in evidence is made payable at the Security Bank, while the one declared on does not mention any place of payment; the allegata and probata, therefore, do not correspond. Mr. Justice Story [336]*336says : “ Nothing is better established, both on principle and authority, than that if the place where a note is payable is omitted in the declaration, it is fatal; for the evidence produced does not support the declaration. There is a variance in the essence of the instrument as declared on and as proved.” Sebree v. Dorr, 9 Wheat. 558. The note in suit is payable, as already stated, at a particular place, and there is no allegation in the petition of presentment at such place, demand of payment and of notice to the indorser. His contract, like his liability, is only conditional. The condition precedent to his conditional liability becoming absolute is that the holder demand payment at the place designated, and duly notify him of any default. The plaintiffs’ title to recover, therefore, depends upon averment of performance of the condition precedent. The petition before us containing no such averment, its absence is fatal to any recovery against the indorser.
III.
If the petition had contained the proper allegation just mentioned as to presentment, etc., it seems that the authorities preponderate, at least in this country, in favor of the view that evidence excusing such presentment or showing a waiver of demand and notice, as ex gr., a distinct promise to pay made after maturity by the indorser, with full knowledge, etc., would be admissible in support of the usual averment. 2 Chitty Plead, (16 Ed.) p. 79 n.
IY.
But even had the petition been properly drawn in the foregoing particulars, the certificate of the notary would have been insufficient in support thereof; and this is apparent for this reason : By a legislative oversight, although section 20, (1 Wag. Stat., 218,) makes- a notarial protest evidence of a demand and refusal to pay, section 50, (lb., 598,) only makes such protest evidence of demand, refusal and notice of dishonor, when verified by affidavit, so that [337]*337the certificate of the notary in the present instance not being verified as required, could be evidence, even if otherwise unobjectionable, only of demand and refusal, and not of notice. The certificate is also objectionable in that it fails to state how, or in what way, the notary gave notice to Malcolm, the indorser. Had it stated that the notary had mailed to Malcolm, at the proper post office, the usual papers, this would have been sufficient. Pier v. Heinrichshoffen, 67 Mo. 163. The certificate is otherwise unobjectionable. It shows due diligence on the notary’s part. He went to the locality designated for payment. Not finding the Security Bank at the place it formerly occupied, he did all he could do by presenting the note for payment to the officers in charge of a bank occupying the rooms formerly occupied by the Security Bank. In such circumstances no demand on the makers was necessary. 2 Daniel Neg. Inst., § 1119.
V.
As this case must go back for re-trial, it is unnecessary to discuss the sufficiency of the evidence to establish Malcolm’s liability as indorser. We may, however, venture the observation that in a recent case in this court, we held that “if the proper steps are not taken to fix the indorser, and thus convert his conditional liability into an absolute engagement, he is discharged, unless, with a full knowledge of all the facts of his release, he promises to pay the debt, or does gets from which such promise can be clearly and unmistakably inferred.” Long v. Dismer, 71 Mo. 452. Not a few authorities may be found announcing that an indorser will not be chargeable after laches by the holder, unless upon his express promise to pay. 2 Greenleaf Ev., § 197, and cases cited. Some of the cases announce, on the other hand, a very lax rule in this particular, making almost any act or expression of the indorser sufficient to charge him. 1 Parsons Notes and Bills, 616. We are unwilling to follow them.
[338]*338VI.
Malcolm’s claim is, that he is only an accommodation indorser. There is no doubt that such an indorser, while the paper remains in first hands, may successfully plead and prove such fact as a defense. 1 Parsons Notes and Bills, 183,184, and cases cited. But though such a defense is good as between the accommodation indorser and the person to whom he grants the use of. his name, yet the defense becomes unavailable when the note passes into other hands. Miller v. Mellier, 59 Mo. 388. We incline to the opinion that the paper has thus passed, and that Bland is a holder for value within the meaning of the authorities. Story Prom. Notes, § 195. This was certainly the result intended to be accomplished by all the parties, and we are not disposed to allow them to withdraw from the consequences of their own voluntary act and to proclaim that act a nullity.
VII.
Although a person who, before delivery thereof, indorses a note of which he is neither payee nor indorsee, is prima facie one of the makers of such note, parol evidence is always admissible to show in what capacity his signature was given. Kuntz v. Tempel, 48 Mo. 71; Mammon v. Hartman, 51 Mo. 168; Seymour v. Farrell, 51 Mo. 96; Cohen v. Dutton, 60 Mo. 297. The first declaration of law given at plaintiffs’ instance is, of consequence, erroneous.
VIII.
If Malcolm, as the petition alleges, was an indorser of the note, he was not a surety, and if not, had no right to notify Bland to bring suit, and is not discharged because of any failure of the latter in that particular, nor because of the dismissal of such a suit after its commencement. The second declaration of law asked by defendant Malcolm'was, therefore, properly refused. Clark v. Barrett, 19 Mo. 39.
[339]*339IX.
The authorities for defendants abundantly show that a party bound in a contract with others, whereby he becomes both obligor and obligee, cannot maintain on such contract an action at law; cannot, in a word, sue himself. This principle, however, does not apply, even at common law, except where the contract is joint, and not where it is (as are all contracts in this State) both joint and several. Thus, where an action was brought by A and B, payees of a joint and several note against C, one of the makers, and it w-as pleaded that the note was made by B, one of the plaintiffs, the defendant and another, and upon argument, the case of Moffatt v. Van Millengen, 2 Bos. & P. 124 n, and other similar cases were discussed, and the plea was held bad. This was upon the grounds that the cases just cited were distinguishable from that one; that the contract sued upon was the several contract of the defendant; and the fact that there was also, upon the same instrument, a joint contract by the three makers, was no defense; that, practically, there were three promissory notes, signed by three different parties; and that the note declared on was not that signed by the plaintiff Smith, but that signed by the defendant. But it was freely conceded there, that if the note were merely a joint contract, it would not be enforceable at law. Beecham v. Smith, E. B. & E. 442. To the same effect are Winter v. White, 1 Brod. & Bing. 350; Bedford v. Brutton, 1 Bing. (N. C.) 399; Leake on Contr., 440. Testing the case at bar by the rules just announced, no question can arise but that the note in suit being the joint as well as several contract of each and all whose names are signed thereto, an action is maintainable in favor of plaintiffs, and against defendants, even at law. The cases in support of the foregoing position, cases which make the distinction adverted to between actions on contracts joint and several, and actions on those joint only, it seems are quite few in number, since those cited are all that a most diligent search has [340]*340been able to discover. But no case save an early one in Alabama, (Ramsey v. Johnson, Minor 418,) has been found denying the correctness of the foregoing distinction.
X.
There is but one further point requiring discussion, and that is, whether there was any consideration for the contract evidenced by the note. If J. D. Faulkner has collected for his own use the note due the estate, we do not doubt that the note before us is supported by a valid consideration. An express promise to pay made by one executor to another can be the basis for an action at law by the one against the other. Phillips v. Phillips, 1 Stewart 71. The fact that the note here is made payable also to J. D. Faulkner as one of the representatives of the estate, does not alter the validity of the transaction, nor overthrow the consideration which supports it. The note is not, strictly speaking, “ void at law,” even as to J. D. Faulkner. It would perhaps be more accurate to say it is not available or collectible at law, for if the note were absolutely void, recovery upon it in any forum would be impossible. But it is not absolutely void, because it is certain that if transferred by the executors, action, even at law, might be maintained upon it by the transferee against all parties to it. 1 Daniel Neg. Inst., § 354, and cases cited. The note, therefore, is not void, nor without consideration, if Faulkner has, as before stated, collected the money for which this note was given, and applied the same to his own use; for thereby he has received the quantum of value represented by the note. In short, we are disposed to regard the estate of R. P. Faulkner represented by Bland as the creditor, and the individual J. D. Faulkner, as the borrower and debtor; the real nature of the transaction, when divested of all technicality, being simply this: That J. D. Faulkner has borrowed the money of the estate from his co-executor, Bland, an irregular and improper transaction, it must be confessed ; but it does not lie in the mouth [341]*341of Eaulkner to plead such irregularity as a defense, and no more does it lie in the mouths of those, his sureties, but for whose action in signing the paper, the necessity of this suit would not have arisen. The judgment is reversed and the cause remanded.
All concur, except Ray, J., absent.