Lancaster v. Collins

On the twenty-ninth of September, 1873, Henry E. Collins executed and delivered to the Big Muddy Iron Company his promissory note, payable 90 days after date, to its order for $10,000. It was indorsed successively by the company by Thomas O'Reilly, by Amelia Collins, and by Richard D. Lancaster. From the latter it passed to the national bank of the state of Missouri. The bank obtained a judgment on it against the company and O'Reilly and Henry E. Collins and Lancaster for $11,290.68, and costs. O'Reilly paid to the bank one-half of the amount due on the judgment, and Collins refunded it to him. Lancaster paid to the bank the other half of the amount due on the judgment, and then brought this suit against Collins to recover from him the sum so paid. Collins, in his answer to the petition, set up the following defense: 'That the Big Muddy Iron Company was a corporation duly organized under the laws of the state of Missouri, and that on the day of the execution of said note and the delivery thereof to the said company the plaintiff in this suit was the president thereof; that said note was given in part consideration for one hundred and thirty shares of stock of the said Big Muddy Iron Company; that the plaintiff solicited this defendant to subscribe for said stock at its par value; that yielding to the solicitation of the said plaintiff in that behalf, this defendant did subscribe for said stock, and paid in cash the sum of three thousand dollars, and executed the before-mentioned note for the balance; that before the defendant would agree to subscribe for said stock, and execute the said note, and pay the said sum of three thousand dollars, it was agreed and understood between the plaintiff and defendant that the defendant should pay cash the sum of three thousand dollars, and execute his note at ninety days for ten thousand dollars, with the privilege, upon the part of this defendant, to renew the same, from time to time, as it became due, and that the one hundred and thirty shares of stock in the said Big Muddy Iron Company, the par value of which was thirteen thousand dollars, should be held by the said plaintiff as collateral security for the payment of said note, with the right, upon the part of this defendant, if he saw proper, to avail himself of it, within one year from the date of said note, to forfeit the three thousand dollars in cash and the said one hundred and thirty shares of stock, and be relieved from further liability on said note; that in pursuance of said agreement the said one hundred and thirty shares of stock was placed with the plaintiff as collateral security, the three thousand dollars in cash was paid, and the said note for ten thousand dollars was executed and delivered; that defendant, before the expiration of said year, notified the said plaintiff that he would forfeit said three thousand dollars and stock, and that the note would not be paid by him. Defendant says that the said stock was never returned or offered to be returned to him by the plaintiff, or any one for him. Wherefore defendant says that the plaintiff has no right of action against him, that he owes the plaintiff nothing, and prays to be dismissed hence, with his costs.' Issue being joined the action was tried by a jury, which found a verdict for Collins, and there was a judgment in his favor, whereupon Lancaster brought this writ of error.

There is a bill of exceptions containing all the evidence in the cause. It also sets forth the charge to the jury, but there is no exception to the charge. The plaintiff, however, requested the court, after the evidence was all in, to instruct the jury to render a verdict for the plaintiff, which request was refused, and the plaintiff excepted. This refusal is assigned for error, on the alleged ground of a variance between the proof and the answer.

''Geo. A. Castleman'', for plaintiff in error.

[Argument of Counsel from pages 224-225 intentionally omitted]

No appearance for defendant in error.

BLATCHFORD, J.