562 MATHENY V. PATTON. [177 MATHENY V. PATTON. Opinion delivered June 11, 1928. 1. APPEAL AND ERROR—SUFFICIENCY OF ASSIGNMENTSL—ASSigMttent of error in a motion for new trial that the verdict was contrary to law, to• evidence, and to both law and evidence, held insufficient to present the question whether the corporation alone had a right to sue on a note and whether it could maintain the action because it was a foreign corporation doing ' business in the State in violation of law. 2. BILLS AND NOTES—RIGHT OF ASSIGNEE TO SUEL—Even if an assignor of a note was a foreign corporation doing business in the State in violation of law, a valid indorsement to plaintiff constituted him a valid "holder" of 'the note within Crawford & Moses' Dig. § 7817, and therefore he could maintain an action on the note. • Appeal from Independence Circuit Court; S. M. Bone, Judge ; affirmed. Coleman & Reeder, for appellant. J. Paul Ward, for appellee. MCHANEY, J. On June 18, 1926, appellant purchased from the Moore Motor Company an automobile, and executed his note for part of the purchase price, payable in monthly installments of $26.45 each. This note was assigned by indorsement 'by the Moore Motor Company to the Kirkpatrick Finance Company of St. Louis, Missouri; without recourse. Payments were made on the note from time to time, leaving a balance of $132.31. The Kirkpatrick Finance Company assigned the note to appel-lee by the following indorsement: "For value received, pay to the order of R. H. Patton. (Signed) Kirkpat-rick Finance Company." Appellant failed to pay the balance due, and appel-lee brought this suit in the justice court, where judgment was rendered against appellant, and an appeal was taken to the circuit court, where it was tried de novo before the court, without a jury, and judgment again rendered for appellee. The only defense made to the note in the court below was that it is usurious. Appellant testified : "Q. You are not much interested in any phase of this case except just
ARK.] . NIATHENY V. PATTON. 563 beating it, are you'? A. Thatis all ; just beating itright ,squarely on .usury, .here. I. trusted them to put their interest in there at 10 ,per cent., .and any ,amount over that :was mot-understood :nor agreed to by me. That „is all. I knew they told me in plain English that I had to .pay 10,Per cent:interest and insurance, thatis:all.." 'This issue was found against appellant by the circuit court and he does not raise the qUestion here.' 'The only question presented for our consideration is whether appellee wai .a proper party plaintiff. -Re insists that the note was assigned to Kirkpatrick Finance Company, .which is the real party in interest, and that it alone had the right to sue upon the note, and' that it could not maintain the action because it is a foreign corporation transacting business in this State in violation Of the laws of this State relating to foreign corporations. -But the question was not raised.in the court below. Appellee was the only witness who testified in this case; and .if there is any evidence in the record showing that the Kirkpatrick Finance Company. is a Missouri corporation, or a corporation of any kind, there is nothing in the abstract presented by appellant to show it. Neither is any such assignment Of error contained in the motion for a new trial, there ,being only three assignments, that the verdict is contrary to:the law, to the evidence, and to both the law and the evidence. These assignments of error are insufficient to present the question now raised for the consideration of the circuit court, and are therefore insufficient to raise the question-here. Moreover, if it be conceded that :the KirkpatriCk Finance Company is a foreign corporation doing business in . this State in violation of law, of .which.there is no evidence in the record, still the assignment by indorsement to appellee, being a. valid indorsement,.constitutes him a valid holder of theinstrument, with power to sue in his own.name, ankl therefore with the right to maintain this action. - The Negotiable Instruments Law, .§ 7761, ;Crawford & Moses'. Digest, defines the word "holder" as "the
564 [177 paYee or indorsee of a bill or note, who -is in- pOssession of it, or the bearer thereof." By § 7817 it is provided that "the holder of a negotiable • instrument may sue thereon in his , own: name, -and *payment to him in due course discharges- the instrument." ApPellee was the holder of the note : in question; and, under,the above sections -of the statute, had. the right to maintain . this action. : Whether appellee was the agent of the Kirkpatrick Finance Company, and whether appellant would have had the right to plead a set-off or counter-claini in this action-against the Kirkpatrick Finance Company, are questions not necessary for us to decide, as -it js nof contended that the appellant had any rikht of set-off or counterclaim against it.. . _ We find no error : in . the record,- and the judgment Fs accordingly affirmed. .
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