Peoples Bank v. Hansbrough , 89 Mo. App. 252 ( 1901 )

BOND, J.

It is insisted that there was no evidence that the plaintiff bank had any knowledge of the intention of de-, fendant by signing his name on the back of the note before its delivery or indorsements to the payee, to limit his liability to that of an indorser. The foregoing letters from the plaintiff bank to defendant furnish a complete answer to this contention. Each communication recognizes the defendant as an indorser, only, of the note in suit. These letters were written by the cashier of the bank and its learned attorney. These persons by their respective avocations must be presumed to have possessed a clear understanding of the different meanings of the terms “indorsers” and “makers” of promissory notes. It would be an unjustifiable imputation upon their intelligence to assume otherwise. The discount of negotiable paper is the most important feature of a bank of discount and deposit, and a knowledge by its officers of the significance of the terms characterizing the various parties to such instruments is absolutely essential to the adequate performance of their duties and the safe conduct of the business of the bank. To hold, therefore, that the commercial meaning of the terms indorsers and makers of notes was unknown to the cashier of the plaintiff bank and its attorney, would be violative of the necessary inferences arising from the special business in which the two men were engaged. The law does not permit a presumption to be indulged which is contrary to reason and the experienced connection between the thing presumed and that which was proven as its basis. It may well be that persons, not by their callings as attorneys or bank cashiers required to possess knowledge of the nomenclature of parties to bills and notes, might be addicted to the use of the terms indorsers and makers, as applied to such paper, in a popular and different sense from the commercial meaning* of these words (67 Mo. App. 381), but no such misuse of these terms ought to be attributed when they are employed by men of skill and training, in a calling which specially demands an accurate comprehension of their import.

Our conclusion is that the evidence of the letters of the bank and its attorney show beyond cavil that defendant’s contract as indorser, simply, of the note was clearly apprehended by the representatives of the plaintiff bank. The position taken by appellant that there was no evidence of such knowledge is, therefore, quite untenable.

II. It is also insisted the court erred in permitting the maker to testify that defendant only signed the note as indorser and not as joint maker. There was evidence tending to show that the bank had previously required the maker to procure Alderson and defendant to sign the note in the particular capacity of indorsers. There was also evidence that the maker reported to the bank that the two parties had signed as indorsers, and there was, as has been shown, further evidence — letters from the bank — showing its recognition of the fact that the defendant was merely an indorser of the note. Besides all this, the record fails to show any exception at the time by appellant to an adverse ruling upon this evidence. It follows, therefore, that there is no merit in the point now attempted to be made.

Finally, one instruction for defendant is criticised as assuming a controverted fact and as tending to mislead. The instruction in question simply told the jury in substance, that it was not necessary for the cashier of the plaintiff to have been personally presént when the defendant signed the note, after an agreement with the maker that he was to be indorser only, provided such conversation was reported to the cashier before he advanced the money. There was certainly no error in this declaration, nor do we see how it could have misled the jury.

The judgment in this case is affirmed.

All concur; Goode, Jin a separate opinion.