Barrett v. Kern
| Decision Date | 11 May 1909 |
| Citation | 121 S.W. 774,141 Mo.App. 5 |
| Parties | M. L. BARRETT, Respondent, v. ROBERT H. KERN, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted, March 30, 1909
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
AFFIRMED.
STATEMENT.--In the years 1900 and 1902, by two several contracts, defendant bargained for the purchase of two tracts of land in Macon county, one comprising 120 and the other 180 acres. The total price to be paid for the two tracts, so far as concerns this case, was $ 8,200--$ 2,200 for the one, $ 6,000 for the other. Both tracts were incumbered by mortgages and under the terms of the contracts of sale and agreements of the parties $ 2,715.58 of the total price was to be paid to one Compton and $ 5,484.42 was to be paid to the plaintiff. Pending the payment of the mortgages and of the purchase price, deeds were executed and placed in escrow, and defendant commenced payment on the purchase price. There is no question that he paid $ 1,000 due Compton on the 120 acres and $ 1,715.58 due him on the 180 acres, and that he paid plaintiff $ 4,484.42 on the two tracts, paying him $ 1,000 March 12, 1902, $ 1,200 on July 14, 1902, and $ 2,284.42 on December 28, 1904,--all these exclusive of interest. The dispute arises over the question of whether he had paid plaintiff $ 1,000 more, the contracts, beyond room for doubt, requiring payment to plaintiff of a total of $ 5,484.42, exclusive of interest. It is over this $ 1,000 that the present controversy has arisen. Defendant refusing to pay, plaintiff brought suit against him for the $ 1,000 and interest thereon, at the rate of 7 per cent per annum, from March 1, 1902, that being the date payment of the whole of the $ 8,200 fell due, it being agreed that if payment was not then made in full, the amounts then unpaid were to bear interest at the rate of 7 per cent per annum. Defendant pleaded in answer to the petition of plaintiff, which set up the above facts in detail, first, a denial of indebtedness in any sum whatever; second, that before action brought, he had discharged and satisfied plaintiff's claims by payment; third, that in September 1903, he and plaintiff had an accounting and entered into an agreement as to the amount which remained due on the contract sued on by plaintiff; that it was then agreed between them that the amount remaining due on the contracts was $ 1,200 with interest; that about December, 1904, he offered to pay plaintiff this $ 1,200, with interest, "as had been agreed was due to plaintiff, but that at said time plaintiff contended that defendant owed him in addition thereto the sum of one thousand dollars and interest thereon, amounting in all to two thousand, two hundred and eighty-four and 42-100 dollars with interest;" that he and plaintiff then and there agreed "that if defendant would pay plaintiff said sum of two thousand, two hundred and eighty-four and 42-100 dollars and interest, that defendant should have a reasonable time to examine his papers to see if he could find a check as receipt showing that he had paid said additional one thousand dollars demanded by plaintiff, and if defendant found that he had paid said additional $ 1,000, then plaintiff would repay the said $ 1000 and interest and if defendant did not find said check or receipt then said sum of $ 2,284.42, with interest, should be accepted as the full settlement of all indebtedness due plaintiff from defendant under said contracts now sued on by plaintiff." Pleading payment of the $ 2,284.42, defendant avers that the interest claimed due thereon from defendant was $ 283.02; that he was unable to find the check or receipt and paid the interest as follows: $ 200 April 8, 1905; $ 83.02, May 19, 1905,
The reply was a general denial.
The trial was before the court, each party waiving a jury. At the trial of the cause the contracts above referred to being in evidence, as before stated, there was no controversy over the fact that they called for the payment of $ 8,200, and that up to about December 29, 1904, $ 2,715.58 had been paid to Compton and $ 4,482.42 had been paid to plaintiff under the two contracts. It was also practically beyond dispute that in September, 1903, both parties assumed that there was only $ 1,200 still due plaintiff, although there was no evidence tending to prove that there was then any such agreement as to that amount as to bind either, and that impression apparently was in the minds of both parties up to December 20, 1904. The real contention and clash of testimony occurred over what took place at and after December 20, 1904. It appears from the testimony in the case that along toward the middle of the year 1904, the defendant, having made arrangements to borrow money on the two tracts, desired to close up the transaction with plaintiff and have the tracts released from the mortgages which still remained unsatisfied of record, and to secure the delivery of the deeds to him by plaintiff. There was a good deal of delay over this, and finally defendant, on December 20, 1904, went to Chicago from St. Louis and there met plaintiff, and appeared to have then learned for the first time, that instead of plaintiff claiming $ 1,200 as still due, he claimed that considerably more remained unpaid under the contracts. Right here the conflict in testimony arose, between the defendant on the one side, and plaintiff and a Mr. Aldrich, a young man, who was acting as his bookkeeper or cashier, on the other. When the defendant reached Chicago and went to the office of plaintiff he was introduced to Aldrich by plaintiff as the one who would go over with defendant the accounts between plaintiff and defendant. Whereupon the defendant and Aldrich sat down in a room of the office of plaintiff, and went over the contracts and account which Aldrich had kept himself, covering the payments to February, 1903, the account from that date down being shown on the books of plaintiff's firm with which Aldrich seems to have been familiar.
It is impossible to reconcile the versions given by plaintiff and Mr. Aldrich on the one hand and defendant on the other, as to exactly what took place and what was agreed on at this interview in Chicago, further than that it is very evident that at the time all of the parties proceeded upon the assumption that up to that date $ 5,915.58 had been paid on the $ 8,200, and the question between them was whether defendant then owed plaintiff $ 2,284.42 or $ 1,284.42. After a good deal of contention, and as defendant was compelled to have the delivery of the deeds in order to carry out contracts he had made for borrowing money on the tracts, it was agreed substantially between the parties that defendant was to pay this $ 2,284.42, leaving it open for him to find or produce receipts or checks, if he could, showing the payment of the difference between the amount and $ 1,200, which he admitted owing, and also leaving open for further calculation the interest to be figured up later, the plaintiff on his part agreeing that if it was found that $ 1,200 was the correct amount, he would refund to plaintiff whatever difference there was between that and the amount plaintiff paid him. That defendant at that time owed plaintiff more than this $ 2,284.42 does not appear to have been then in the minds of either party as far as the evidence in the case shows. At the close of their conference in Chicago, the defendant, while in the office of plaintiff in Chicago, dictated this letter, addressed to the cashier of the bank at Macon, and delivered it to plaintiff to be sent on by plaintiff with the papers, the letter being dated December 20, 1904:
On his return to St. Louis, the papers evidently not having been sent on to Macon by plaintiff, defendant wrote him this letter:
Plaintiff does not appear to have answered this letter until December 29th, when he wrote defendant as follows:
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