Crawford v. Johnson

BOND, J. The promissory note in this case is a negotiable instrument by the terms of the statute enacted for the purpose of putting certain promissory notes upon the same footing as inland bills of exchange. To give promissory notes this quality, it is only necessary that they should express a promise to pay money at a time certain; or capable of being rendered certain, should designate the payee to whom or to whose order they are payable, and should be expressed to be for value received. R. S. 1899, sec. 457; Goodwin v. Buhler, 57 Mo. App. loc. cit. 67; Shoe & Clothing Co. v. Crosswhite, 124 Mo. loc. cit. 38; Crow v. Harmon, 25 Mo. 417; R. S. 1899, sec. 894. The note in suit bears all these statutory requisites. It was also indorsed in blank by the payee, whose title was thereafter transferable, without further indorsement, by the mere delivery of the paper. The indorsement of the payee, being undated, created a prima- facie presumption that it was made before maturity of the note, and that the subsequent transferees, by delivery, acquired the note before maturity for value and in good faith. Daniel on Negotiable Instruments, section 784; New Albany Woolen Mills v. Meyers & Co., 43 Mo. App. loc. cit. 128; Eyermann v. Piron, 151 Mo. loc. cit. 116. This presumption as to the time of acquisition of the instrument by the plaintiff was overcome by her admission that she got it from her husband in 1893, but there was no testimony that either her husband or Tuttle (both of whom held the note be [484] fore plaintiff), acquired the instrument after its maturity. As to Tuttle, the first holder of the note after its indorsemeut by the payee, there was no evidence whatever rebutting the presumption that he acquired the paper before its maturity for value and in good faith. On the other hand, he testified to a state of facts which tended to show that he was an innocent purchaser of the note for value and before maturity, for he states that he took it before maturity as collateral security against loss by the present assumption of the obligations as a surety on a twénty-thousand-dollar indebtedness. Loewen v. Forsee, 137 Mo. 29. There was evidence, however, tending to show that plaintiff’s husband knew of an agreement for the payment by defendant on this note by crediting thereon his demands for hauling and payment of freight. But even with this knowledge, plaintiff’s husband could acquire the higher title of a previous innocent holder for value of the note. This is permitted for the full protection of a bona fide purchaser of a negotiable instrument before maturity, and the'same rule is applicable to real estate. Dan. Neg. Ins., secs. 726a, 803; Griswell v. Buckley, 72 Mo. App. loc. cit 56; Bank v. Stanley, 46 Mo. App. 440; Carig v. Zimmerman 87 Mo. loc. cit 479. If,' therefore, the evidence showed that Tuttle acquired the note by the indorsement of the payee therein, before its maturity for a valuable consideration and without notice, his transfer to the plaintiff’s husband invested the latter with the same rights to recover on the note to which Tuttle was previously entitled. This favored the status of the husband as the transferee (though after maturity), of a bona fide purchaser of the note before maturity, is one which he had the power of transmitting to his wife or any other subsequent transferee. Roberts v. Lane, 64 Maine 108; Cromwell v. Sac. County, 96 U. S. 51. Such subsequent transferees, though acquiring the title which their transferrer had previously bought, could not, however, take a [485] greater title than he had at the time of the transfer to them. If, therefore, the note, while in his possession, became affected with any infirmity adhering to or connected with the note itself —such payments, accord, etc. — these defenses would pass with the note into the hands of the party taking it after maturity. Hunleth v. Leahy, 146 Mo. loc. cit 418; Booher v. Allen, 153 Mo. loc. cit 622; Turner v. Hoyle, 95 Mo. 337. But the taker for value of past due negotiable paper, is not subject to equities against his indorser which grew out of transactions independent of the note or instrument Cutler v. Cook, 77 Mo. 388; Barnes v. McMullins, 78 Mo. 260; Knaus v. Givins, 110 Mo. 58; Kelly v. Staed, 136 Mo. loc. cit 436; Gemmel v. Hueben, 71 Mo. App. loc. cit. 295, and cases cited. In the case at bar, the plaintiff’s assignor was her husband. The defense attempted to be set up against the note in her hands does not grow out of any infirmity in the instrument, nor is it in anywise connected with the contract expressed by the terms of the note. It rests solely upon an alleged agreement had by the defendant with the representative of a building concern — which was not a party to the note. It related to matters wholly disconnected with the performance of the contract expressed by the note, was not claimed to have been made until after,the execution of the note, and if available at all against that instrument, could only have been claimed upon the theory that it created a right of setoff of a demand due the defendant from the building company for whom he rendered the services of hauling and payment of freights. There is no evidence that the present plaintiff was a party to or cognizant of any such agreement. Although as transferee for value after maturity, she took the note in suit from her husband subject to any defenses legally attaching to it while in his possession, she did not take it subject to-the'defense in this case even if ff constituted matter of valid setoff. Eor, it has [486] been aptly said by our Supreme Court, “In this state when a negotiable note is indorsed or transferred after maturity, the right of offset or counterclaim on an independent contract, does not follow it in the hands of the assignee. We adhere to the English rule, that only such equities follow it as arise out of or adhere in it, and that the assignee takes it divested of all rights and claims arising out of independent transactions.” Barnes v. McMullins, 78 Mo. loc. cit. 270; Daniel on Neg. Inst., sec. 725. It follows that this case was decided upon an erroneous theory of the rights of the plaintiff. The judgment is, therefore, reversed and the cause remanded. Judge Bland concurs; Judge Goode, having been of counsel in the matter, does not sit nor participate in the decision.