Clark v. Porter , 90 Mo. App. 143 ( 1901 )

BLAND, P. J.

The notes sued on were executed in the Indian Territory, where, for judicial purposes, the laws of Arkansas prevailed; and as they were made payable at a bank in Fort Smith in the State of Arkansas, the laws of Arkansas in respect to their negotiable quality therefore control. Plaintiff established the fact that the notes are negotiable paper under the laws of Arkansas by reading in evidence the case of Trader v. Chidester, 41 Ark. 243, wherein it was ruled that, to add to a promissory note containing the negotiable words of the law merchant, the following clause, to-wit, “and in the event of this note being collected by suit at law I agree to attorney’s fee of ten per cent of the amount of the principal and interest due,” did not destroy or impair the negotiable 'quality of the note. Plaintiff being an innocent purchaser of the notes for value before their maturity was entitled to recover regardless of the defense of fraud in their procurement and for failure of consideration. The defendant at the trial did not contend that the notes on their face are not negotiable, or that the plaintiff is not an innocent holder for value, but relied on sections 492 and 493, supra, to destroy the negotiability of the notes. In respect to this defense, the court instructed the jury that if they found the notes were given for a patented machine, implement, substance or instrument of any kind, to find for the defendant. By its instructions the court assumed, as it was warranted under the evidence to do, that the notes were without consideration and were obtained by fraud. But it was equally apparent that the notes are not affected by sections 492 and 493, supra. The notes (for $3,000) which plaintiff first purchased were executed prior to the passage of the above sections, they being negotiable and in the hands of plaintiff as an innocent purchaser for value before maturity, were not open to tbe defense of fraud or want of consideration. The enactment of tbe statute afterwards could not invalidate them. Ins. Co. v. DeBold, 16 How. 432; Green v. Neal, 6 Peters 297. In consideration of tbe surrender of these .notes,'the ones in suit were executed; plaintiff therefore surrendered valid notes for tbe notes in suit and their' consideration is not for a patented right, but for tbe surrender of valid notes to tbe maker. Tbe verdict of tbe jury is, therefore, supported by .the evidence and is for tbe right party. While there are two counts in tbe petition, tbe jury made but one finding and assessed in one gross sum tbe amounts due on both notes. This was error. Bricker v. The Missouri Pacific Ry. Co., 83 Mo. 391; State v. Harmon, 106 Mo. l. c. 657; State v. Bedell, 35 Mo. App. 551. But tbe defendant can not avail himself of tbe error here for tbe reason tbe attention of tbe trial court was not called to it by bis motion for new trial, nor in arrest.

Tbe judgment is for tbe right party and is affirmed.

All concur.