Edelen v. Worth

Biggs, J. This is an action on a promissory note. The note is signed by the defendants and made payable to plaintiff. On its back the following is indorsed:' “This note to be void, providing B. H. Edelen keeps a certain multiple bond, No. - of the (Guarantee Investment Company of Nevada, Mo., for the period of twelve months from the date of this note, otherwise to be good and paid one week after due, and said B. H. Edelen surrenders said bond to D. F. Foor. It being expressly understood that it is entirely optional with B. H. Edelen whether he shall surrender the note or the bond to D. F. Foor, at the expiration of the time. ’ ’ The petition made no reference whatever to this indorsement. The answer is a general denial. It also states other matters as special defenses, which we need not notice, as no attempt-was made to prove them. At the trial the plaintiff offered the note in evidence. This was all of the evidence. The court sitting as a jury found for the plaintiff and entered judgment against the defendants for the amount of the note. The defendant Jones alone has appealed. He claims that the evidence is not sufficient to support the judgment. There was no evidence tending to show when and by whom the indorsement was made. In the absence of such proof, the presumption is that it was made con [126] temporaneously with the execution of the instrument 'and by authority of the parties thereto, and hence became a part of the note. Mo. Pacific Railway Company v. Levy, 17 Mo. App. 501; 1 Dan. Neg. Inst., section 154; Hartley v. Wilkinson, 4 Camp. 127. Beading (as we must) the face of the note and the indorsement together, the agreement of the parties was in effect that the defendants would pay plaintiff the amount specified therein, provided the plaintiff, within ° the time mentioned surrendered the bond of the Guarantee Investment Company to Poor. The proviso or condition is a part of the covenant to pay, and therefore under the rules of pleading it was incumbent on the plaintiff to note it in his pleading, and aver and prove a liability consistent with it. Coal Company v. Brick Company, 66 Mo. App. 296. In other words, he should have alleged in his petition and proved at the trial that within the required time he returned or offered to return the bond to Poor. As he did neither, the judgment will have to be reversed and the cause remanded. It is so ordered. All the judges concur.