If the petition counted alone upon the stat- | specific section of the Constitution is pointed ute, the question could have been raised by demurrer or answer. If the petition had sufficient allegations to also state a cause of action at common law, which it had not, the question could have been raised by answer or by motion to strike out. Then was the time and opportunity for defendant to present its constitutional question, so that it might be considered with care by opposing counsel and determined with deliberation by the court. But the defendant waited until the trial was in progress and the statute was offered in evidence, and then for the first time raised the question. It was too late.

ment. The statement is not obiter if it is applied to the facts. If the constitutional question could be raised in the pleading, and is raised for the first time in the motion for new trial, and the court says that it ought to have been raised at the earliest moment practicable in the orderly procedure and conduct of the case, and that time was when the opportunity was presented in filing the answer, then that statement is not obiter, but it applies directly and distinctly to the facts in that case.

The case of State ex rel. v. Tibbe Elec. I ble, is obiter, because in most of those cases Co., 250 Mo. 522, 157 S. W. 635, was based the question was not raised until after judg solely upon certain sections of the statute, which sections are pointed out in a demurrer to the petition. The demurrer states that the section of the statute is unconstitutional, but fails to specifically point out the section of the Constitution which is violated. The court held that the constitutional question was not raised. These sections of the statute were in the case "from start to finish," and if the petition could be challenged on the ground that it did not state cause of action because based on unconstitutional statutes, at any stage of the proceeding, in the appellate court as well as elsewhere, then this court would have retained jurisdiction.

The case of George v. Railroad, 249 Mo. 197, 155 S. W. 453, is an action for personal injuries based upon certain sections of the statute. These sections of the statute were in this case "from start to finish." It was held that because the constitutional question was not raised in the usual course of procedure in the trial court, this court would not assume jurisdiction.

In the case of State v. Cook, 217 Mo. 326, 117 S. W. 30, the defendant was found guilty of violating a statute, and appealed to this court. That statute and its validity were in the case from start to finish. The constitutionality of the statute was challenged for the first time in the motion for a new trial, and the court held that it was not

raised.

The above are only a few of the many cases which might be cited showing the uniform practice of this court where an action was based upon a statute, and where the validity of that statute was before the court “from start to finish." In each of them the constitutionality of a statute was challenged, and, unless the statute was constitutional, no cause of action was stated. This court did not assume jurisdiction in any of them unless the question was timely and properly raised as indicated.

A constitutional question might obtrude itself upon the judicial notice with such insistent demand for recognition that consideration of it could not be escaped. But that is not this case. This court refused to entertain such demand when presented in the recent case of State ex rel. Columbia Telephone Co. v. Public Service Commission, 271 Mo. 28, 195 S. W. 741, and in the more recent case of City of Lancaster v. Reed (No. 18930) 201 S. W. 95, not yet officially reported. The doctrine of the McGrew Case cannot be applied where the question of jurisdiction is involved.

III. It is suggested that the statement in the several cases where the courts say the question must be raised at the earliest possible moment and in the answer, if practica

The case should be transferred to the Kansas City Court of Appeals. It is so ordered.

BAILMENT 21 AUTHORITY OF BAILEE

SATISFACTION OF EXECUTION-LEVY AGAINST
BAILEE.

A mere bailee for the sale of a piano had no authority to turn it over in satisfaction of an levy upon it for the satisfaction of his debt as execution against himself, nor could his creditor against the owner or bailor.

Appeal from Circuit Court, Vernon County; B. G. Thurmond, Judge.

"Not to be officially published."

Replevin by the Cable Company against A. E. Elliott. Judgment for plaintiff in the circuit court on appeal from justice court, and defendant appeals. Affirmed.

A. E. Elliott, of Nevada, Mo., for appellant. W. M. Bowker, of Nevada, Mo., for respondent.

TRIMBLE, J. This is a replevin suit, brought in a justice court to recover possession of a piano. Upon appeal to the circuit court the case was tried, and judgment went in favor of plaintiff. Defendant appealed.

Plaintiff, engaged in the piano business, had placed the piano in the possession of one J. E. Roberts under a contract of bailment. The title to the piano remained at all times in the plaintiff, and while Roberts was to sell the piano and account for the proceeds, yet the plaintiff had the right to repossess itself of the piano at any time.

Defendant, as attorney for the Illinois Sewing Machine Company, obtained a judgment against Roberts, and was about to levy execution thereunder when Roberts turned the piano over to defendant under an agreement that the latter would hold said piano

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

until Roberts could effect a sale thereof. | 7. BILLS AND NOTES 517 VALIDITY OF The execution was then to be paid out of the NOTE-INCOMPETENCY OF MAKER. proceeds of the sale and the balance paid to Roberts, defendant agreeing that in the meantime he would withhold levy of execution.

There is no question but that the title to the piano never was in Roberts; he was a mere bailee thereof and had no authority to turn the piano over in satisfaction of an execution against himself, nor could a creditor of Roberts levy upon same for the satisfaction of his debt, as against the owner of the piano. Packard Piano Co. v. Williams, 167 Mo. App. 515, 151 S. W. 211; Peet v. Spencer, 90 Mo. 384, 2 S. W. 434; Mansour v. Caulfield, 160 Mo. App. 324, 142 S. W. 770. Roberts' debt to the Sewing Machine Company was not created on the strength of the ownership of the piano; there was no question of any fraud of that kind.

The judgment is affirmed. All concur.

MILLER v. CHINN. (No. 12829.) (Kansas City Court of Appeals.

April 29, 1918.)

Missouri.

1. COURTS 95(1) - PRECEDENTS - FOREIGN DECISIONS.

A petition in a suit on a note, both made in Mississippi and payable therein, held to have properly pleaded decisions of that state, showing that such a note was negotiable under the laws thereof.

Defendant held not to have sustained the burden of showing that he was so intoxicated or was so mentally deranged from previous intoxications as to make him incompetent for business when signing the note sued on, where the fraudulent inducing of intoxication was not charged.

Appeal from Circuit Court, Howard County; David H. Harris, Special Judge. "Not to be officially published."

Suit by Waller C. Miller against William E.

Chinn. Judgment for defendant, and planitiff appeals. Reversed and remanded. John Cosgrove, of Boonville, for appellant. Paul P. Prosser, of Fayette, for respondent.

TRIMBLE, J. This is a suit upon a promissory note, dated January 25, 1912, due two years after date, executed by the defendant to one Ed P. Miller. The case is before us on its second appeal. The first is reported in 195 S. W. 552. The origin of the note, and how it came into the possession of plaintiff (payee's brother), are set forth in that decision; but afterwards an amended petition and a new answer were filed, whereby additional issues were raised and certain other questions presented, so that, for a convenient and ready understanding of the matters now involved, it is perhaps well to restate the facts. The note was given as part consideration for a one-half interest in 500 acres of land in Mississippi known as the "Willowdale Plantation," which interest defendant, on January 25, 1912, contracted in 2. BILLS AND NOTES 362 - TRANSFER BY writing to buy of said Ed P. Miller. About INNOCENT PURCHASER PAYEE AGENT OF the middle of March, 1912, defendant, accordMAKER. The rule that an innocent purchaser may selling to evidence introduced in his behalf, reto one with notice, and the latter will succeed to turned to Missouri, threw up his contract, the innocent purchaser's rights, does not apply and demanded the return of his note. to the original payee, who again becomes the cording to the evidence, also, Ed P. Miller holder in due course although taken in the took back the full control of said plantation, name of his agent. or, in other words, consented to said rescission, and told defendant his note would never give him any trouble. It was not returned to him, however. On December 17, 1912, Ed P. Miller indorsed: said note in blank and delivered it to the Bank of New Franklin in Howard county, Mo., as collateral security for a debt he owed it, giving said bank authority to sell the collateral, without notice, and apply the proceeds to the payment of said debt. The bank took said note before maturity and was an innocent purchaser. The record title to another tract

3. BILLS AND NOTES 537(6)

ACTIONS

EVIDENCE-JURY QUESTION. Evidence held sufficient to go to the jury on the question whether plaintiff bought the note from the bank, which was an innocent purchaser, or merely took the note as agent for his brother, the original payee. 4. BILLS AND NOTES NOTE-EVIDENCE-SUFFICIENCY.

527(1)-DISCHARGE OF

Evidence that the original payee of a note, while still holding it, consented to the rescission ..of the contract under which the note was given held sufficient, if believed by the jury.

5. ESTOPPEL 98(1) - PERSONS AFFECTED WAIVER.

Where the matter of promptness of the maker in calling for rescission of contract in which note was given was waived by the original payee, his agent, as plaintiff, cannot insist

upon it.

of 1,400 acres in Mississippi, known as the "Paradise Plantation" also stood in Ed P. Miller's name, and on February 27, 1913, said Ed P. Miller entered into a contract with Heath and Swarner, whereby he agreed to trade an undivided one-half interest in both of the above-named plantations for 60 acres of land in Pettis county, Mo., and other property. In consummation of this contract, Heath and Swarner on March 10, 1913, conveyed said 60 acres of Pettis county land

plaintiff in his dealings with the bank was really buying defendant's note, or was merely acting for his brother in paying off the latter's debt, is an issue of first importance in the case. Of course, even if this fact were established, it is still incumbent upon defendant to show that he was justified in refusing to pay the note either on account of the completed rescission claimed, or, if that were not proved, then on account of the note's invalidity by reason of the maker's alleged inebriety and the unfair advantage taken of him by means thereof.

to the plaintiff herein, Waller C. Miller, the | or not. So that the question of whether deed being recorded April 10, 1913; and on June 7, 1913, Ed P. Miller conveyed to Heath and Swarner the half interest in said plantations. Twelve days thereafter, or on June 19, 1913, plaintiff, Waller C. Miller, deeded the 60 acres of Pettis county land to the president of the Bank of New Franklin, receiving in exchange therefor the collateral put up with the bank, and Ed P. Miller's note to the bank was canceled and turned over to plaintiff. Plaintiff claims that he was purchasing the note in suit held as collateral by the bank, while defendant contends he was, in fact, acting for his brother Ed P. Miller in paying off the latter's debt. Whatever was the nature of this transaction, it seems that the amount of Ed P. Miller's debt to the bank exceeded the value of the Pettis county land by $500; and, although plaintiff swore that he gave the Pettis county land for the note in suit and knew nothing of this $500 difference between the value of the land and his brother's debt, yet the president of the bank swore that he told plaintiff of this difference, and that before the trade could be made, he would have to see if Ed P. Miller would pay the bank the difference; that he saw Ed P. Miller, and he agreed to and did pay or secure it, and then the exchange was made, "the agreement all around" being to pay Ed P. Miller's note to the bank.

[1] The note, being made in Mississippi and payable there, was a Mississippi contract. The petition, however, pleaded decisions of that state holding that a note payable, as this one was, is negotiable under the laws of that state. Craig v. City of Vicksburg, 31 Miss. 216; Stokes v. Winslow, 31 Miss. 518: Meacham v. Pinson, 60 Miss. 217; Eyrich v. Capital State Bank, 67 Miss. 60, 6 South. 615. These foreign decisions were properly pleaded. Miller v. Chinn, 195 S. W. 552, 554; State National Bank v. Levy, 141 Mo. App. 288, 125 S. W. 542. And they were introduced in evidence, so that the note in suit is unquestionably a negotiable instrument.

It was held on the former appeal that there was sufficient evidence to go to the jury upon the question of whether plaintiff was, in reality, buying the note for himself or was merely acting for his brother in paying off the latter's debt; and likewise we think defendant this time adduced sufficient evidence to go to the jury upon that question. The evidence clearly shows that the record title to all the Mississippi lands was in Ed P. Miller; and his deed to Heath and Swarner says the Paradise plantation is the same property bought of Luse "by Ed P. Miller." The evidence shows also that he, in writing, contracted to trade Heath and Swarner a half interest in said lands for the Pettis county land and other property, but that when the deed was made by Heath and Swarner it was made to the plaintiff. The latter's explanation of this is oral, and is not explicit, but rather vague and unsatisfactory, saying that he and his three brothers, Ed, Samuel, and William, were interested in certain lands, he having a one-fourth interest, and that his brother Ed owed him some money, and he agreed with Ed to accept the Pettis county 60 acres in full of his onefourth interest and the money owed to him by Ed, and that thereupon Ed had Heath and Swarner deed the 60 acres of Pettis county land direct to him. The credibility of this oral explanation was for the jury to pass In addition thereto, the reasonable [2, 3] The delivery of the note to the bank upon. and the delivery by it to plaintiff was before inferences which the jury could draw from maturity. Therefore the bank, being an in- plaintiff's evidence are that, at the time nocent purchaser for value, took said note plaintiff obtained the note in suit from the free of all equities between maker and payee, bank and had his brother's debt canceled, he and, if the plaintiff herein purchased said knew defendant had repudiated said note; note for himself, then, as held on the former and the jury had the right to consider that appeal, he succeeded to all the rights the as a circumstance bearing upon whether he bank had as an innocent holder, even though really bought the note himself or was merehe had notice of the note's infirmity, but not ly acting for his brother in the matter. His if he were merely acting for his brother, Ed statement, in effect, that he knew if the P. Miller. Indeed, if plaintiff was merely bank had no notice of the note's infirmity acting for his brother, and the latter had, he would succeed to the bank's rights even as certain evidence in defendant's behalf if he himself had notice, was for the jury tends to show, consented to defendant's re- to believe or disbelieve as they saw fit. In scission of the contract under which the note other words, they could consider all the cirwas given, then when Ed's debt to the bank cumstances and draw all reasonable inferwas canceled, the note in suit became no ences therefrom in determining whether or longer of any force or effect, regardless of not plaintiff was buying the note or paying whether defendant's other claim concerning his brother's debt. All this, in connection the invalidity of the note was well founded with the testimony relating to the negotia