Smith v. Roach

Gill, J. This is an action on a negotiable promissory note for $150, dated January 24, 1893, due four [117] months after date, and purporting to be signed by J. T. Roach, Benj. Everett and Charles Close. On the second day after date of the note the payee, Cornish, for value, sold and assigned the same to plaintiff Smith. The action was dismissed as to defendant Roach, he not being served. Defendants Everett and Close, in there answer verified by affidavit, denied the execution of the instrument sued on. The issue was tried before the court sitting as a jury, resulting in a finding and judgment for defendants, and plaintiff appealed. The plea of non est factum interposed by defendants Everett and Close, and supported by affidavit as required by the statute, imposed the burden on plaintiff of proving that said defendants executed the note. In this the plaintiff wholly failed; the evidence was all to the effect that these defendants did not sign said instrument, and that it was a forgery. The plaintiff, however, sought to recover on the ground that these defendants were estopped to deny the execution of the note. The testimony giving color to this claim was to this effect: That within a day or two after plaintiff had purchased the note from Cornish, the defendants were, by letter from Cornish, informed of that fact and that plaintiff held the note, and that they made no answer to such notice until a few months thereafter. This evidence proved no estoppel. It is clear that before this notice was served on these defendants, the plaintiff had already purchased the note from Cornish. He was not, then, induced to part with any money nor induced to change his position, by the alleged silence of the defendants. The rule is well established that there is no estoppel unless the party to be estopped has made some statement, or has done some act upon which the other party has been induced to rely, and in [118] consequence of which he has taken some action. Eitelgeorge v. House Bld’g Ass’n, 69 Mo. 52; Spurlock v. Sproule, 72 Mo. 504; Acton v. Dooley, 74 Mo. 63, 67. The judgment here is clearly for the right party and will be affirmed. All concur.