Jacobs v. Gibson

Ellison, J. This action is on a promissory note, plaintiff being the indorsee and defendant the indorser thereof. Judgment was rendered for plaintiff in the circuit court. There was objection to any evidence on the ground that the petition did not state a cause of action against defendant as an indorser; in that it did not state facts showing the note to be negotiable; that is, that it did not state that the note was “expressed to be for value received.” Bills and notes: petition: aiiegation of neg-otiabaity: copy of Formerly, the operative words, under the statute, to render a note negotiable were for “value received, negotiable and payable without defalcation.” R. S. 1855, sec. 15, p. 295. Now the statute only requires that the note shall be payable to a “payee therein named, or order or bearer, and expressed to be for value received.” R. S. 1889, sec. 733. It has always been held that the petition on such a note should state facts which show it to be negotiable — that it would not do to merely allege that it was negotiable, which is an allegation of a mere conclusion. Jaccard v. Andrews, 32 Mo. 188; Hart v. Harrison Wire Co., 91 Mo. 414; Simmons v. Belt, 35 Mo. 461; Lindsay v. Parsons, 34 [248] Mo. 422; Townsend v. Herr D. G. Co., 85 Mo. 503; Bateson v. Clark, 37 Mo. 31. The petition in this case alleges that “James Calnen, by his promissory note filed, etc., dated Richmond, Missouri, November 1st, 1893, for value received, promised to pay to defendant or his order one thousand dollars,” etc. But for the ease of Hart v. Harris son Wire Co., supra, we would be of the opinion that the petition properly alleges the note to be negotiable. As we gather the argument of defendant, it is that the foregoing allegation is not an allegation that the note contained the words “for value received.” That it is a mere assertion that the note was, in fact, for value received by defendant, but not an assertion that the note so states. This is, perhaps, in a strict sense, true. But yet the allegation is, in all respects, like that in Bateson v. Clark, supra, which was held sufficient. It certainly follows, in this respect, the form sent out with the statutes. But, as before stated, under the case of Hart v. Harrison Wire Company, we would be compelled to hold the allegation insufficient were it not for the fact that the petition proceeds to allege “which said note is in words and figures following, to wit:” Setting out the note in haec verla, and thus disclosing that the note itself contained the words “value received.” Copying the note bodily into the petition, with the allegation that it was a copy, amounted to an allegation that it contained the words in question. __;indorsement: assignment. 2. It is next contended that the indorsement was not an indorsement according to the law merchant, but rather a mere assignment only, and that, therefore, defendant did not incur the liability of an indorser. The indorsement is as follows: * “Jan 4th, 1895, -for value received, I assign the within note to Mrs. L. C. Jacobs. John Gibson.” The indorsement, under rules of commercial law, [249] might have been in blank. When in blank it carried with it authority in the holder to fill out the indorsement so as to convey the title in express terms. There is no reason why an indorsement made in full form by the indorser should not hold him as such, as well as if he had made it in blank with the implied authority to the indorsee to fill it out as here written. While there is some conflict of authority on the question, the more reasonable view is that since the indorser used no words of restriction, he meant to be held as an indorser. 1 Daniels on Neg. Inst., secs. 688b, 688c, 692. In Davis v. Francisco, 11 Mo. 572, the indorsement was in'substantially the same language as found in this note, yet it was treated as a binding indorse*ment of commercial paper. __. indorsement notTce ”ndup“oi test:waiver. 3. Defendant next contends that there was no demand or protest of the note. The note, as will be observed from the foregoing copy, contains, in the body thereof, the following waiver: “The signers and indorsers each waive demand, uotice and protest of this note and severally agree that the time may be extended without notice.” The note, though negotiable, was indorsed after maturity. That fact, however, did not destroy its negotiable character. By the indorsement it became a new bill at sight. Davis v. Francisco, supra. And required demand and notice unless the words just quoted from the body of the note constituted a waiver. We entertain no doubt that they constitute such waiver. Notwithstanding the contract of indorsement is a new and independent contract, yet there is no reason why it can not, as such, include in its terms matter not included in the actual words of the indorsement. When the waiver of demand, notice and protest is embodied in the note itself, it enters into and becomes a part of the [250] contract of every one who signs, whether maker or indorser. Indorsers become parties to the waiver by becoming parties to the note. 2 Daniel Neg. Inst., secs. 1092, 1092a; Tiedeman on Com. Paper, sec. 363. _¡pleading: variance. 4. What we have said concerning the note being set out in full in the petition and averred to be a copy, will apply to the other objections urged here by defendant, viz., that there was a variance between the petition and the note in evidence, in that (as contended) the note names a place of payment as “The Banking house of J. S. Hughes & Co.,” while the petition (as is contended) is silent as to a place of payment. The fact that the note was truly set out in the petition necessarily prevents a variance when offered in evidence. We have found no error justifying a disturbance of the judgment in the trial court and hence affirm it. All concur.