Nance v. Hayward

JOHNSON, J. This is an action on a negotiable promissory note executed and delivered by defendants to John N. Taylor. Tbe petition alleges that before maturity tbe payee delivered tbe note “to plaintiff for value received and tbe said John N. Taylor [219] indorsed the same in writing across the back thereof.” The answer is merely a general denial. A jury was waived and at the trial plaintiff introduced evidence tending to show that before maturity the payee sold and delivered the note to plaintiff for value but offered no evidence to prove indorsement by the payee. The court overruled defendants’ demurrer to the evidence and rendered judgment for plaintiff. Defendants appealed. The answer confessed the execution of the note (Sec. 1985, R. S. 1909; Smith v. Rembaugh, 21 Mo. App. 390; McGill v. Wallace, 22 Mo. App. 683) but not its alleged indorsement by the payee to plaintiff, the holder, and the general denial was sufficient to* put in issue plaintiff’s title and the genuineness of the pleaded indorsement. [Worrell v. Roberts, 58 Mo. App. 197, and cases cited.] A blank indorsement was pleaded, since the name of the indorsee was not specified (Sec. 10004, R. S. 1909) and the rule is well settled that the holder of an unmatured negotiable promissory note indorsed in blank is prima facie the owner thereof (Cloud v. News Co., 23 Mo. App. 319; Bank v. Stanley, 46 Mo. App. 440; Hawes v. Mulholland, 78 Mo. App. l. c. 500; Allen v. Harris, 79 Mo. App. 490), but to establish such prima-facie case it devolves on the holder to prove the indorsement by evidence aliunde the indorsement. [Reinhard v, Coal Co., 25 Mo. App. 350; Bank v. Pennington, 42 Mo. App. 355; Mayer v. Old, 51 Mo. App. l. c. 216; Worrell v. Roberts, supra; Hugumin v. Hinds, 97 Mo. App. 346; Dunlap v. Kelly, 105 Mo. App. 1; Discount Cp. v. Becker, 138 Mo. App. 54.] Plaintiff pleaded title in himself by indorsement and delivery and thereby assumed the burden of proving the existence of the constituent elements of such title (Dunlap v. Kelly, supra). He did not discharge his burden by merely proving that the payee had delivered possession of the note to him for value. While [220] it is true that the negotiable instruments aot (Sec. 10019, E. S. 1909) provides that “where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferrer had therein, and the transferee acquires, in addition, . . . the right to have the indorsement of the transferrer if omitted by accident or mistake,” that statute has no application to a case such as the present where the pleaded cause embraces a title by indorsement and not one resting upon the mere right to have an omitted indorsement supplied. Plaintiff must recover, if at all, on the cause of action alleged in his petition (Dunlap v. Kelly, supra) and his attempt to recover under the provisions of the statute just discussed is a material departure from his petition and cannot he allowed. The learned trial judge erred in overruling the demurrer to the evidence. The judgment is reversed. All concur.