Tucker v. Gentry

BROADLUS, J. — The plaintiff as administrator of the estate of W. W. Tucker, deceased, sues tbe defendant as executor of tbe estate of R. L. Todd, deceased. Tbe history of tbe case in tbe main is substantially as follows: In June 1889, Miss Bettie P. Todd, a daughter of R. L. Todd, deceased, bought a thirty-acre farm of one C. S. Pierce in tbe state of California, at tbe price of $7,597.20, — 659 — in payment for which" she borrowed about $1,800 from her father which said amount she paid to Pierce to complete the cash payment required, and for the balance she executed three promissory notes, two for $1,000 each and the other for $3,179.20 all bearing ten per cent compound interest, to secure the payment of which she executed a common-law mortgage. The said notes are each dated June 17, 1889, and were due, respectively, as follows: One for $1,000, on or before January 1, 1891; one for $1,000, on or before January 1, 1892; and the other was due on or before the first day of January, 1893. Early in the year 1890 said R. L. Todd induced W. W. Tucker to buy these notes from Pierce and to hold them at a reduced rate of interest; and through the efforts of R. L. Todd, said Pierce sent said notes to the Exchange National Bank at Columbia, Missouri, of which Todd was the cashier. These notes were indorsed by Pierce as follows: “Pay to the order of R. L. Todd without recourse. C. S. Pierce.” On the note first due, the one in controversy, is the following writing: “Credit February 17, 1890, by seventy-four and 50-100 dollars (74.50), bal. due nine hundred and 93-100 dollars — which are to bear only six per cent interest from this date. R. L. Todd.” It seems that Tucker was not present at this time, but Todd charged his account in the bank with the amount of the three notes and remitted the proceeds of the notes to Pierce. No complaint is made of want of authority upon the part of Todd to apply the funds in the bank belonging to Tucker to the purchase of the said notes. Tucker died in 1892, and his son B. F. Tucker, the plaintiff here, and said Todd, were appointed as administrators of his estate. In August, 1892, after the death of Tucker, and after the note in suit became due, Miss Todd conveyed said mortgaged property to her father, R. L. Todd, for the expressed — 660 — consideration of $7,500. This conveyance was made without consulting her father, and it is claimed for the purpose of enabling-him to dispose of the property at private sale and to apply the surplus to remunerate himself for the money he had advanced to her when she made the purchase. After Tucker’s death a controversy arose between Todd and Tucker’s heirs which was not adjusted but was still pending when Todd also died. B. E. Tucker, as surviving administrator of TV. TV. Tucker’s estate presented the note mentioned to' the probate court fo‘r allowance against Todd’s estate. Said note was filed in the probate court without any statement accompanying it. TVe gather from the plaintiff’s argument that he relies for recovery upon two grounds, viz.: first, that Todd was an indorser ; second, if not an indorser, he was a guarantor. Pierce, the payee of the note, transferred it "to Todd who thereby became the holder. It is contended that the writing on the back of the note: “Credit February 17, 1900, by seventy-four and 50-100 dollars ($71.50), balance due nine hundred and 93-100 dollars' — which are to bear only six per cent interest from this date,” and signed by R. L. Todd, amounts to an indorsement by Todd. It seems to us, however, that it is plainly otherwise, and that the signature of Todd is to be construed as a mere attestation of the credit given and of the reduced rate of interest the note shall bear from that date. But there is evidence that Todd said at one time that he had indorsed the note to Tucker. On this point, T. S. Carter testified that after the death of Tucker he had heard Todd say he had indorsed and delivered the three notes to Tucker, and that he felt he was liable for them. But admitting that the signature of Todd, as aforesaid, was intended as, and, in fact, was an indorsement, we do not see how that would help the plaintiff, as it does not appear'that demand and notice of failure to pay was ever at any time made upon- Todd; in the absence of which the plaintiff could not recover of Todd or his executor. — 661 — The next question that arises is: did Todd by placing his name on the bach of the note constitute himself a guarantor ? The determination of this question involves an inquiry as to what it takes to constitute a guarantor. The contract of a guarantor, it is agreed by all the authorities, which need not be cited, is very different from that of an indorser. An indorser is only a security for the solvency of the maker of the bill, while a guarantor guaranties or warrants the payment of the debt evidenced by the bill. When the guaranty is contemporaneous with the execution of the instrument, it is not necessary that there should be any consideration other than that for which the note is evidence. But where, as in this case, the alleged guaranty was made long after the execution and delivery of the note, although before due, there must be some new consideration. Like all valid contracts, there must be a consideration to support it; and there can he no presumption of a consideration — it must be proved. Howard v. Jones, 13 Mo. App. 595; Pfeiffer v. Kingsland, 25 Mo. 66; Osborne & Co. v. Lawson, 26 Mo. App. 549; Daniels on Negot. Inst., pp. 682-83, sec. 1160. There is nothing in this case tending to show a consideration for a guaranty. The evidence is to the. effect that Todd, at the time he delivered the note to Tucker, although he was the indorsee, had no interest in it whatever. It was transferred to him as a matter of convenience to be delivered to Tucker, the purchaser. The contention of the plaintiff for this reason alone would fail. We are forced to the conclusion that Todd was neither an indorser nor a guarantor, as the testimony wholly fails to show either. On the trial, plaintiff B. E. Tucker was introduced as a witness to prove certain statements alleged to have been made by Todd in April, 1892, while an inventory was being made of the estate of the deceased Tucker. Upon objections on the part of the defendant that he was not a competent witness, he was not permitted to testify. Plaintiff alleges this to have — 662 — been an error upon tbe part of the court. It is true that section 4652, Revised Statutes 1899, provides that, “where an executor or an administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator. . . .” The statute does not apply to the facts of this case. The statements of . Todd sought to be introduced were not made by Todd’s executor after the probate of his will, but were made by Todd while he was acting with plaintiff as administrator of Tucker’s estate. The plaintiff was incompetent by reason'of the fact that he was an heir at law of the deceased Tucker. Leach v. McFadden, 110 Mo. 584; Messimer v. McCray 113 Mo. 382; Miller v. Slupsky, 158 Mo. 643; Warfield v. Hume, 91 Mo. App. 541.. Miss Bettie P. Todd was also introduced as a witness by plaintiff to prove the signature of C. S. Pierce, the indorser and payee of the note in suit; whereupon the defendant, over the objections of the plaintiff, proceeded to prove by her other facts in the case. This is claimed to have been error on the part of the court. It is true that Miss Todd was an incompetent witness by reason of the fact that she was an heir at law of Todd the deceased but the plaintiff by introducing her as his own witness waived her incompetency. Borgess v. Vette, 142 Mo. 560; Hoehn v. Struttman, 71 Mo. App. 399. .The defendant has argued that he could not be held to the payment of the note on the ground that his testator had assumed its payment in consideration for the conveyance to him by Miss Todd of the California land mortgaged to secure the same. The plaintiff has not urged that point in his argument for the reason, we suppose, that it was untenable as there was no evidence upon which to base it. The plaintiff offered to prove by J. A. Johnson certain — 663 — statements alleged to have been made by Todd to him shortly before Todd’s death, in reference to the indorsement of the note. His competency as a witness was objected to because he was the husband of a daughter of the deceased Tucker, which objection was sustained. The plaintiff complains of this ruling of the court. It is insisted that the estate of the decedent which descended to witness’s wife, under the statute, became her separate estate; and therefore the husband has no such interest as would disqualify him as a witness. This argument would perhaps be good if the statute which governs the rights of married women changed the entire relation that existed between husband and wife at common law; but unfortunately for the plaintiff’s contention, it does not. Callahan v. Billat, 68 Mo. App. 435; Bieber’s Admr. v. Boeckmaun, 70 Mo. App. 503; Joice v. Branson, 73 Mo. 28. It is useless to cite further authorities on this question. There are other questions raised by the parties here, but as those already passed on have precluded the right of the plaintiff to recover upon any theory whatever, they will not be considered. Eor the reasons given, the cause is affirmed. All concur.