Burton v. Eureka Bank

Cook, J., delivered the opinion of the court. This case originated in the circuit court of Copiah county. The Eureka- Bank brought suit against the appellant, R. E. Burton. The action was based upon the following promissory note executed by the appellant in favor of the payee, W. T. Wilkinson, and was by Wilkinson assigned to the Eureka Bank. [399] “$900.00 Eureka, Mo., April 20', 1916. “Nine months after date! I promise to pay to the order of W. T. Wilkinson nine hundred dollars, at the Bank of Eureka, Eureka, Mo., with interest from date at the rate of eight per cent, per annum until paid. The makers, sureties, indorsers and guarantors of this note hereby severally waive demand, presentation for payment, notice of nonpayment, protest and of diligence in bringing suit against any party thereto, and consent that the time of payment may be extended without notice thereof, and further agree that in case payment of this note shall not be made at maturity and the same is placed in the hands of an attorney for collection, they will pay the costs of' collecting this note, including an attorney’s fee of ten per cent, of the principal and interest thereof remaining unpaid. “B. C. Burton.” Without going into the pleadings, we will state the alleged fa'cts upon which Burton relied to escape the payment of the note. He testified that the note represented the agreed value of three Perdieron mares which were shipped to him upon consignment; that he would undertake to sell the mares for certain sums; that in case he could not sell them Mr. Wilkinson agreed to cancel the note and take the mares back. The plaintiff introduced evidence to show that Burton bought the mares outright, and that the note represented the agreed price for the mares. The jury evidently did not,believe Burton and did believe Wilkinson. There was abundant evidence to sustain the verdict of the jury, and we think that the attendant circumstances supported the theory of plaintiff. The jury, however, as juries will sometimes do, decided not to allow interest and attorney’s fee, which were provided for in the note. When the jury reached the conclusion that the plaintiff should recover, they necessarily discarded the testimony of the defendant, and [400] it was their plain duty to award interest and attorney’s fees, as well as the principal. There was an appeal by the defendant and a cross-appeal by the plaintiff. There is no merit in the appeal of defendant. The jury refused to accept his evidence. The verdict for plaintiff carried with it the ten per cent, attorney’s fees and the interest nam'ed in the note. The case will be affirmed on appeal and reversed upon the cross-appeal, and a judgment here for the attorney’s fee and interest. Affirmed on direct appeal and reversed on cross-appeal, with judgment here. Affirmed on direct appeal. Reversed on cross-appeal.