Griffith v. Conway

Gill, J. — This is an action on a promissory note alleged to have been executed by Conway &' O’Dowd, a partnership of which defendant was a member. The note was executed by O’Dowd in the firm-name, and was in the usual form of negotiable paper and payable in terms to P. Mugan or order. Mugan sold and assigned the note before due, to the National Bank of Kansas City. The note was not paid at maturity, and the bank gave it into the hands of the plaintiff Griffith with instructions to sue, but not to sue in the name of the bank. Whereupon Griffith, assuming to hold the same on account of the bank and for collection, brought this suit in his own name. Conway, under the sworn plea of non est factum, made the defense of want of authority in O’Dowd to execute the note, etc.; but of this we need not make further mention, since, in so far as concerns our opinion hereto, it becomes unnecessary. The evidence, among other matters, tended to show, that when the note matured, and payment was refused, the National Bank of Kansas City, then the owner and holder, charged the amount thereof back to Mugan on his account with the bank, and from that day Mugan became again the owner of said note. Yet the bank after thus reselling the note to Mugan placed the same in the hands of Griffith with' instructions to sue as ■before stated. Mugan testified that he had no relation to the suit — was not prosecuting the same ; and there is not a scintilla of evidence tending to prove that he authorized the bank or this plaintiff to collect or sue on his account. I. Here was testimony tending to establish a clear defense to a suit by the plaintiff on this note. If with Mugan’s consent the bank, after the dishonor of the note, charged the amount thereof to Mugan on his account, it is plain that thereby the title to the note [577] became reinvested in Mugan, and thereafter the bank had no interest in the paper. The bank then could not maintain a suit as owner, because it no longer had title. There is no evidence that Mugan had authorized the bank or this plaintiff to collect the note on his account, hence the bank could not sue as one holding the paper for collection; and as the bank could not maintain a suit in any event, neither could its transferee, Griffith. Lee v. Turner, 15 Mo. App. 205 ; Julian v. Calkins, 85 Mo. 202. II. Now at the conclusion of the evidence plaintiff tendered a series of four instructions, and requested the court to give the same. The request was refused, and as we think correctly, too. Admitting the instructions to embody correct law, yet as they purported to cover the entire case, and as there were no other instructions given or refused (since the defendant asked none, and the court of its own motion gave none), these instructions were rightly refused because they omitted entirely the foregoing defense. We do not mean to say that each instruction must declare all the law applicable to the entire case, covering every matter of claim, or defense, for it is now well settled in this state that it is sufficient if all the instructions, considered as one charge, serve to present the case fully and fairly. And so we now view these several instructions offered by plaintiff. They are all to be read together as one whole. They purport to cover the entire case, and they compose all the declarations of law offered by. either side; but the vice of the charge is that it excludes the consideration of a material matter of defense, to-wit: That plaintiff had no interest, no right to sue even as collection agent for the owner of the note. As said by J udge Scott in Clark v. Hammerle, 27 Mo. 70: “ A party, therefore, who asks an instruction [ or series of instructions we say ] on the whole case, must not frame it so as to exclude from the consideration of the jury the points raised by the evidence of his adversary.” [578] Plaintiff’s instructions then being refused as we think properly, this case was submitted without any; and, as there was evidence tending to support the court’s finding and judgment, we have nothing to do but affirm the judgment, which is accordingly ordered. All concur.