Golden City Banking Co. v. Morrow

ROBERTSON, P. J. This is an action on .a promissory note dated May 14, 1912, signed by defendant and another. The defendant’s answer, being unverified, admits the execution of the note, but it undertakes to allege fraud in the procurement of her signature thereto and absence of consideration to her for signing. Upon a jury trial the court directed a verdict for the plaintiff for the face value of the note. Judgment was entered thereon and defendant has appealed. As we understand appellant’s brief, there is but one question urged here, which is that the court erred in directing the verdict because her testimony tended to prove that her signature was procured by fraud. The testimony is to the effect that a defaulting cashier of plaintiff hank and his wife, in company with the man who succeeded him as such cashier, went to defendant’s home one evening in 1909 and requested her to sign a note with the defaulting cashier’s wife. This she did, of which the note in suit is a renewal, but just what was said to her before doing so is difficult to even surmise from the testimony. The most that can be said of it, and more than we think is really justified, is that she was induced by these parties, including the then cashier of plaintiff’s bank, by a promise, that the deposed cashier’s wife would give her a note signed by her and a chattel mortgage on her household furniture and piano to indemnify her, which was done shortly thereafter, and which all the parties there present assured her was ample to protect her, and we may concede, told her that the property was free of liens. The defendant testified that the furniture was sold on execution, whether by reason of a levy having been made before she got her mortgage or by reason of her failure [518] to file or record her mortgage in the office of the recorder of deeds we cannot determine. The chattel mortgage, a writ of attachment, a judgment and a special execution were offered in evidence, but none ■ of them, nor their substance, is set out in the abstract of record. The trial court saw this evidence and we must presume properly determined its legal effect. “The burden is on appellant to show error.” [Gardiner v. Robertson, 208 Mo. 605, 611, 106 S. W. 645, and Rankin v. Railroad, 150 Mo. App. 32, 46, 129 S. W. 755.] The defendant, assuming that plaintiff’s cashier made any representations as to the household furniture that would bind it, failed to show that they were false. The appellant testified at the trial, on February 20, 1914, that the sale under the execution was “maybe a couple of years ago.” This was all the testimony on that point. It also appeared in evidence that defendant did get the piano of the ex-cashier’s wife, which cost six or seven hundred dollars when new, four or five years before the date of trial, but that she gave it back to the woman. If the question of the absence of consideration is intended to be urged here in behalf of appellant, which we think it may, that contention is readily answered by section 10000, Revised Statutes 1909, defining an accommodation party as one who signs a note as maker without receiving value therefor and for the purpose of lending his name to some other person. The undisputed testimony is that the parties desired the appellant to sign the note with the ex-cashier’s wife, as an accommodation maker, and that she so signed, so that the’defense of absence of consideration was properly ignored by the trial judge. We do not find anything in the record which convicts the trial court of error, and must, therefore, affirm the judgment. Affirmed. Farrington and Sturgis, JJ., concur.