Tevis v. Tevis , 24 Mo. 535 ( 1857 )

Soott, Judge,

delivered the opinion of the court.

This was a suit on an assigned note by the assignee. The following is a copy of the instrument sued on: “St. Louis, July 1st, 1851. Two years after date, I promise to pay to the order of Tevis, Sons & Co., four thousand dollars, for value received, with interest as per agreement from date. [Signed] Henry L. Tevis.” [Endorsed] “ Pay to Rev. John Tevis. Tevis, Sons & Co.” Henry L. Tevis was the maker of the note, and the suit is against Tevis, Sons & Co., as the assignors of it, the maker of the note being insolvent. Henry L. Tevis drew and assigned the note to the plaintiff, being a member of the firm of Tevis, Sons & Co. The defence was that the note was not a partnership security ; that it was given by H. L. Tevis for money borrowed for his individual use, with the knowledge of tbe lender, wbo is the plaintiff. Among other instructions the court gave the following, at the instance of the defendant, viz : “ The form of the note sued on in this.action imports that Henry L. Tevis was the principal debtor, and that Tevis, Sons & Co. were his sureties. The jury is instructed that Henry L. Tevis had no authority by virtue of being a member of the firm of Tevis, Sons & Co. to give the endorsement of that firm as a security for money lent to him individually.”

It seems to us that this instruction virtually determined the controversy. The note, without any extrinsic evidence, imports that H. L. Tevis made it to Tevis, Sons & Co., and that they assigned it to the plaintiff, thus making H. L. Tevis primarily liable, and Tevis, Sons & Co. liable as assignors in the event of his insolvency. The form of the note does not import that Tevis, Sons & Co. were sureties ; it only shows that between the maker and the payees there existed the relation of creditors and debtor. The note having been given by H. L. Tevis to Tevis, Sons & Co. is prima facie evidence that money was loaned by Tevis, Sons & Co. toH. L. Tevis. (2 Stark. Ev. 182.) It is alone the knowledge of the extrinsic facts which can enable one to believe that Tevis, Sons & Co. were made securities for H. L. Tevis. Present the note to one who is ignorant of all the external circumstances which influence it, and it will never occur to him that Tevis, Sons & Co. were the sureties of H. L. Tevis otherwise than as assignors. But let him understand that H. L. Tevis was a member of the firm of Tevis, Sons & Co., that he drew the note and assigned it in the partnership name and delivered it to the plaintiff, then there are circumstances from which a conclusion may be drawn that Tevis, Sons & Co. were intended to be made the sureties of H.' L. Tevis. We do not consider the case of Livingston v. Roosevelt, 4 John. 257, as maintaining that where a member of a firm draws a note in his own name, payable to the firm, and assigns it in the partnership name, that the assignee of such note is presumed to have taken it with the knowledge that it was for the maker’s individual debt. That case only goes the length that under such circumstances, so indirect a mode o? doing that which might have been done in a much simpler way, if it was really a partnership transaction, is evidence in support of the defence that the debt thus, secured was the individual debt of him who executed such a security. But the instruction under consideration, in order to be sustained, must rely on some other case than that cited ; for it would derive support from that case, though it should not appear that the maker of the note was a member of the firm to whom it was made payable ; that is, the instruction would have the conclusion drawn that there was a suretiship created by the note, though it did not appear that H. L. Tevis, the maker, was a 'member of the firm of Tevis, Sons & Co. This fact could not be learned from the face of the note, and yet the case from Johnson is relied on, which goes upon the supposition that the maker of the note was a member of the firm to whom it was payable. By transposing the two propositions contained in this instruction — and such transposition does not at all affect their sense — it is plain that after it was given the jury had nothing to do but to sign a verdict.

The instruction given by the court, with the exception of the last clause, which rendered it obscure if not unintelligible, set the ease of the plaintiff in a proper light before the jury, and wo see no error in refusing those asked by him, as one of them was only designed to state in confused terms what should have been put in a plain way to the jury. Had the instruction given by the court been unexceptionable in the particular stated, there would have been no necessity for- it. The second instruction asked was improper, because although every fact assumed in it was true, a verdict for the plaintiff should not have followed, unless the defence set up had been negatived. The instruction asks for a verdict precisely as if there was no defence in the case, though the existence of that defence was entirely consistent with the state of the facts mentioned in the instruction. The circumstances and the evidence in the case did not warrant the giving of the plaintiff’s last instruction, and there was no coherence, as we can see, between the propositions or matters contained in it.

We "do not well see what is meant by the terms “ express evidence” in the defendant’s first instruction. It is certainly a very unhappy expression for an instruction to a jury. We do not know what idea was intended to be conveyed by it. Certain it is that the fact alluded to might have been established by circumstantial evidence, or its existence might have been implied from other facts.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded ;

Judge Leonard absent.