Blesse v. Blackburn

Thompson, J., delivered the opinion of the'court. This action is brought' upon a promissory note for the sum of two hundred and fifty dollars, executed May 11, 1881, payable eighteen months after date, to' the order of Henry Beyl, bearing interest from date at the rate of eight per cent, per annum, jointly signed'by the defendant, Catherine P. Blackburn, who is the principal debtor, and the defendant Feuerstein and also Joseph W. Buenzi, as sureties. The petition alleges that the payee, Henry Beyl, assigned and delivered the note for a valuable consideration to the plaintiff, and that the plaintiff is the legal holder of it. The answer admits the execution of the note, but denies that it was assigned by Beyl to the plaintiff or that the plaintiff was the legal holder of it, and pleads payment. The cause was tried by the court sitting as a jury, and there was a finding and judgment in favor of the plaintiff. The only exception which is brought to our attention is the ruling of the court upon an item of evidence. The note appeared to have been endorsed by Henry Beyl. It was thought material by the defendants to show that this endorsement was not the signature of Beyl. Beyl so testified on the witness-stand, though he broke down on cross-examination. What shook his faith in the genuineness of his own signature was the introduction of a check drawn by him, the signature of which was admitted to be genuine, and its use for the purpose of comparison with his alleged signature on the back of the note in question. We concede that this ruling of the court was not technically correct, under the rule recently laid down by the Supreme Court in Rose v. Bank, 91 Mo. 399. But it does not follow from this that the judgment in the present case is to be reversed. The signature of Beyl on the back of the note was not necessary in order to pass title to it to Blesse, and it was, therefore, not material to Blesse’s title that the alleged signature was genuine. The evidence of Beyl was to the effect that the money was loaned by him to Buenzi ; [268] •that he demanded payment of Ruenzi after the note had been due for some time ; and Ruenzi brought Jiim two hundred and fifty dollars, the face of the note, whereupon he delivered the note to Ruenzi, but without endorsing it, and charged the interest due on the note against Ruenzi on his books, which interest is still unpaid. The evidence of Blesse and of Ruenzi, the latter called as a witness for the defendants, was to the effect that when Beyl demanded payment of the note of Ruenzi, the latter went to Blesse and made an arrangement with Blesse that Blesse should advance two hundred and fifty dollars, for the purpose of taking the note up and having it transferred to him, Blesse; that Blesse gave this money-to Ruenzi; that Ruenzi took it to Beyl, turned it over to Beyl, and received the note from Beyl; that either Beyl endorsed his name upon the back of the note, or that the endorsement of Beyl’s name was written by another man in the presence of Beyl and Ruenzi; and that the note, thus endorsed, was delivered by Ruenzi to Blesse. In this transaction Ruenzi acted as the agent of his sister, Mrs. Blackburn, the principal maker of the note. This evidence is indisputable upon the record. Such being the facts, it follows as a conclusion of ■law that the note was not paid. Payment is a question of intent, but the intent must be the intent of both the payer and the payee. Here it is immaterial whether or not Beyl supposed that the note was paid. As between the other parties to the transaction, it was a mere purchase of the note from Beyl with money advanced by Blesse, and a transfer of it to Blesse. Clearly, then, Blesse is entitled to recover upon the note. Whatever .errors may have been committed at the trial, the judgment was for the right party, and we are prohibited from reversing it by the terms of section 3775 of the Revised Statutes. This conclusion has been reached by all the members of the court after much consideration. The judgment will be affirmed. All the judges con.cur.