Bank of Ozark v. Tuttle

NIXON, P. J. Attention is called to the fact that this is an action on notes procured by Lowthorp and company under circumstances disclosed in the case of Bank of Ozark v. Hanks, 142 Mo. App. 110, 125 S. W. 221, and this case is practically a companion of that case. It will be seen on comparison of the evidence that the two cases are almost identical; that Lowthorp and company were a band of professional swindlers, traversing the country to entrap the unwary by a fraudulent sash lock scheme, and, by specious and fraudulent representations, obtaining promissory notes for the purpose of negotiating them, and then moving on to other counties to reap another harvest from the unsuspecting people. The first history of the operation of this band of swindlers in Missouri commenced in Christian county. After completing their operations in that county, they sought new territory in Webster county, but having become alarmed at notice given of their operations, they moved on to [300] Linn county, talcing Taylor with them. While in Christian county, they obtained the notes sued on in this action. The defendant, Ed. Tuttle, was a resident of Christian county, and the Lowthorp gang by their schemes succeeded in securing his signature to what they represented and he believed to be a receipt of contract — two papers — and the evidence tended to show that he executed the papers believing them to be such contracts. That at the time he could not see without glasses and was feeling dizzy. The notes were sold to the plaintiff bank the following Monday, June 25th. It is shown that there was an entire failure of consideration for these notes and that they were obtained by fraudulent representations. The legal questions involved upon the evidence presented in this record are entirely identical with those in the Hanks case and it is wholly unnecessary to again discuss them; they are simply referred to and adopted as a part of this opinion. There is, however, an additional question not previously presented or considered in the Hanks case. At the trial of the case, defendant offered in evidence the depositions of Jonathan Knight, S. L. McGarraugh and others as to what took place in the sale of sash locks and the carrying out of the same fraudulent scheme in Webster and Linn counties after the time when the plaintiff bank bought the notes in question. To the offer of this evidence, the appellant duly objected but the evidence was received and read to the jury. The evidence was only offered for one purpose and that was to show that the bank at the time it purchased the notes had notice of the consideration for which the notes were given and the circumstances under which they were procured. This evidence as tO' what Lowthorp and company did with or without the knowledge of the plaintiff bank subsequent to the purchase of the notes was certainly incompetent. But it [301] does not thence follow from the admission of snch incompetent evidenct that the judgment should be reversed. The assistant cashier of the appellant bank himself testified that as the agent of the bank he purchased the notes of C. S. Lowthorp paying therefor $265, in cash, a discount of eight per cent, on the two notes; that the notes were indorsed without recourse and that Lowthorp when asked to indorse the notes refused to do so; the assistant cashier also stated that he had only bought one note before for the bank from strangers. It also appears that at least one citizen had called at the bank two days before the purchase of these notes and notified the officers of the bank not to purchase his notes for the reason that he believed the whole thing was a swindle. It further appears that Taylor and Adams had purchased one of these contracts and intended to operate the scheme themselves. All this appears in so satisfactory a way that there could be no question as to the ample notice that the bank had of the consideration for these notes. The tendency of the evidence offered by the respondent in the form of depositions was to show that after Taylor and Adams had purchased a contract, Taylor went through other counties with Lowthorp and company in the sale of these contracts. As will be seen, such testimony only tended to show operations of the gang similar to their operations in Christian county, and showing that they continued the same swindling scheme in Webster and Linn counties. This evidence was entirely cumulative in its nature, and the general rule is that a judgment will not be reversed on account of the admission or exclusion of evidence merely cumulative. [Martin v. Block, 24 Mo. App. 60; Young v. Hudson, 99 Mo. 102, 12 S. W. 632; Miller v. Miller, 13 Mo. App. 591; Nelson v. Wallace, 57 Mo. App. 397; Gidionsen v. The Union Depot Ry. Co., 129 Mo. 392, 31 S. W. 800.] Especially should this rule be applied to cases like the present where the evidence is substantially uncontradicted that the bank, after its officers had full notice of the nature of the [302] fraudulent transactions, purchased these notes. [Leeser v. Boekhoff, 38 Mo. App. 445; Levitt v. Miller, 64 Mo. App. 147.] The law has shown its consideration for the honest purchaser of negotiable paper and surrounded bona fide purchasers with every reasonable safeguard. The procuring of negotiable paper by fraudulent practices, as in the present case, has been carried on systematically by many swindling schemes. It is, of course, a part of the “game” to market the fraudulent paper, for without such an opportunity, the scheme could not be carried into consummation. The legal maxim caveat emptor applies as well to purchasers of negotiable paper as to the purchaser of any other' species of property. Under all the circumstances in this case, the jury was well warranted in believing that the officers of the plaintiff bank had at least sufficient notice to put them on guard as to the fraudulent scheme, and they were therefore duly warned not to give any aid, directly or . indirectly, to the swindle that was being perpetrated on their neighbors and customers. The law will not stamp its approval on such transactions, offensive with the odor of corruption, and foul with the taint of fraud. In any event, where, as in this case, upon a consideration of the whole record, the judgment is so manifestly for the right party, it should be affirmed, regardless of errors occurring at the trial. [State ex rel. v. Jones, 131 Mo. 194, 33 S. W. 23; Cass County v. Bank, 157 Mo. 133, 57 S. W. 736; S. Albert Grocery Co. v. Grossman, 100 Mo. App. 338, 73 S. W. 292; Carmody v. Hanick, 99 Mo. App. 357, 73 S. W. 344; State ex rel. v. Branch, 151 Mo. 622, 52 S. W. 390; Farmers’ Grist Milling Co. v. Lovell, 78 Mo. App. 320; Woody v. St. L. & S. F. R. Co., 104 Mo. App. 678, 78 S. W. 658.] The judgment is accordingly affirmed. Gray, J., concurs. Cox, J., not sitting.