First National Bank v. Stam

ROBERTSON, P. J. — This is an action against appellant and the St. Francis Oil Company on a promissory note. A trial resulted in a verdict for the amount of the note, interest and attorney’s fee. Defendant Stam appealed. The petition declares on a note for $4000 dated November 23, 1912, due in ninety days after its date, executed by St. Francis Oil Company and appellant- to themselves and indorsed to plaintiff, providing for interest at the rate of eight per cent per annum and for ten per cent attorney’s fee if placed in the hands of an attorney for collection. The note filed therewith conforms to these allegations, except it was due in thirty days after its date, was payable to and indorsed by the St. Francis Oil Company and was signed by it, another party and appellant as makers. The plaintiff filed an amended petition accurately describing the note filed, which, upon the motion of appellant, was stricken out because, as alleged by appellant, it set up a different cause of action from that alleged in the original petition. Plaintiff then refiled its original petition to which appellant filed an unverified answer and [443] the parties proceeded to trial, the St. Francis Oil Company defaulting. When the note was offered in evidence appellant objected thereto on account of the variance above stated. The objection was overruled and the note was admitted in evidence. The plaintiff’s cashier testified, without objection, that it owned the note, having paid four thousand dollars therefor. The appellant offered no testimony. The points urged here are (1) the alleged error of the court in admitting the note in evidence, (2) the alleged absence of proof of indorsement and (3) the alleged error in allowing the attorney’s fee. We rule all of these contentions against appellant; the first one because our Supreme Court in a case similar to this (Salmon Falls Bank v. Leyser, 116 Mo. 51, 66-68; 22 S. W. 504) held that such discrepancies as here relied on to defeat an admission of a note in evidence is nothing more than variance which must, to be available, be taken advantage of by an affidavit of surprise under what are now sections 1846 and 1847, Revised Statutes 1909. In that case, as here, the note was admitted in evidence over an objection. Other cases to the same effect are Olive Street Bank v. Phillips, 162 S. W. 721 (St. Louis Court of Appeals); Bell Savings Bank v. Tayor, 69 Mo. App. 99; Barrows v. Million, 43 Mo. App. 79, and Henshaw v. Insurance Co., 9 Mo. 336. The plaintiff’s amended petition did not change the cause of action and the motion to strike it out should not have been sustained. [Sonnenfield v. Rosenthal, 247 Mo. 238, 266, 152 S. W. 321.] This case, argumentatively at least, sustains the trial court’s action in admiting the note. Under this authority the variance in the note and petition did not constitute an entire failure of proof, it was only a'variance covered by said section 1846. No case can likely be found where it is so clear as here that a party has not been “actually misled to his prejudice.” The note was on [444] file over a year before tbe case was tried, tbe plaintiff undertook to amend by alleging a correct description of tbe note, was prevented by appellant wbo went to trial on an unverified answer. Much is said in appellant’s brief about an exbibit'being no part of tbe petition; that be could not reach tbe variance by demurrer, and that tbe only way be could bave bis rights enforced was by an objection to the offer of tbe note in evidence. Even where tbe instrument sued on is filed in compliance with section 1844, Revised Statutes 1909, it becomes no part of tbe petition (Keator v. Helfenstein Park Realty Co., 231 Mo. 676, 680; 132 S. W. 1114), but it is none tbe less subject to tbe inspection of tbe defendant. If there is such a discrepancy in tbe note declared on and tbe one filed as to not justify its being offered in evidence then the instrument sued on is not filed as required by said section 1844. When it is not filed defendant can bave tbe cause dismissed. [Rothwell v. Morgan, 37 Mo. 107.] Tbe second point urged by appellant is ruled against him because tbe uncontradicted and unchallenged testimony shows that plaintiff purchased tbe note, was tbe owner thereof and the payee whose name appeared therein as having indorsed it, was a party defendant wbo, by bis default admitted plaintiff’s ownership. A formal indorsement of a note is not, in every base, essential to pass title. [Section 10019, Revised Statutes 1909. Lipscomb v. Talbott, 243 Mo. 1, 31, 147 S. W. 798, and cases there cited. Dawson v. Wombles, 123 Mo. App. 340, 345, 100 S. W. 547.] In support of defendant’s third point it is urged that .plaintiff should bave proven that ten per cent of tbe amount found to be due on tbe note was a reasonable attorney’s fee. We resolve this point against him. [North Atchison Bank v. Gay, 114 Mo. 203, 210, 21 S. W. 479.] A different rule may be applicable to a note which fixes no amount but provides for a rea-, sonable attorney’s fee and it may be that a maker of a [445] note who agrees to pay a fixed per cent as an attorney’s fee should be liable for no more than is reasonable; such questions are not before us. It is our duty to follow the decision of our Supreme Court, and as the Gay case is directly in point here, since the appellant raised no point below as to the reasonableness of the fee and did not complain in his motion for a new trial of the excessiveness of the verdict, it is better that we desist from discussing decisions from other States. The judgment is affirmed. Farrington and Sturgis, J.J., concur.