Bryant v. Lazarus

• Decision Date: 01 July 1911
• Citation: 235 Mo. 606,139 S.W. 558
• Parties: BRYANT et al. v. LAZARUS et al.
• Court: Missouri Supreme Court

139 S.W. 558

235 Mo. 606

BRYANT et al. v. LAZARUS et al.

Supreme Court of Missouri, Division No. 2.

July 1, 1911.

1. PARTIES (§ 80) — DEFECTS — WAIVER.

Under the direct provisions of Rev. St. 1909, § 1804, a defendant, by answering and going to trial without objection to the nonjoinder of one as party plaintiff, waives the defect.

2. NEW TRIAL (§ 103) — GROUNDS — NEWLY DISCOVERED EVIDENCE — RELEVANCY.

Plaintiff and another were partners in the saloon business, and, being largely indebted to defendants and to other creditors in small amounts, pledged their saloon and entire stock to defendants under an agreement that defendants should pay themselves out of the proceeds, and assume and pay the other debts of plaintiff and his partner. Plaintiff claimed that defendants agreed that they would place him in charge of the saloon, furnish him with additional supplies, and out of the sales to be made by him would pay themselves and the other creditors, and that as a security for his performance of the contract he gave them a warranty deed to a lot, but that defendants refused to carry out the contract. Held, that after a verdict for plaintiff newly discovered evidence that plaintiff was insolvent when he went into the saloon business, and that his partner furnished most of the money, was irrelevant and not ground for a new trial.

3. EVIDENCE (§ 77) — PRESUMPTIONS — FAILURE TO CALL WITNESSES.

Where a principal is sued upon a contract made by his agent, the failure to produce his agent at the trial raises a presumption that the agent would testify adversely to the principal, and that the principal's defense is not in good faith.

4. NEW TRIAL (§ 108) — GROUNDS — NEWLY DISCOVERED EVIDENCE.

In an action to cancel a warranty deed which plaintiff claimed he gave defendant as security for the performance of a contract which he entered into with defendant's agent, defendant testified that he had never seen a letter written by his agent, wherein the agent said that the deed was intended only to be a mortgage. After a verdict for plaintiff, defendant moved for a new trial, on the ground that the letter referred to had been discovered. Held, that defendant was not entitled to a new trial, since the letter supported the contention of the plaintiff that the deed was only a mortgage, and would also tend to show that the defendant had sworn falsely when he testified that he had never seen or received such a letter.

5. MORTGAGES (§ 38) — ABSOLUTE DEED AS MORTGAGE — EVIDENCE — SUFFICIENCY — FAILURE OF CONSIDERATION.

In an action to cancel an absolute deed, given as security for the performance of a contract, evidence held to support a finding that the deed was in reality a mortgage, and that the consideration therefor had wholly failed.

Appeal from Circuit Court, Dunklin County; J. L. Fort, Judge.

Action by J. H. Bryant and another against N. Lazarus and T. P. Nassauer, copartners, doing business under the firm name of Lazarus & Nassauer. Findings for plaintiffs, and from an order granting a new trial they appeal. Reversed and remanded, with instructions.

Plaintiffs' petition is in two counts. The finding was upon the second count, which charges that in 1903 plaintiff J. H. Bryant and one T. J. Clark were the owners of a saloon and fixtures in Dunklin county, Mo., and being indebted to defendants in a large sum of money for whiskys and other supplies, and being also indebted to other creditors in small amounts, pledged their saloon, fixtures, and entire stock of liquors, etc., to defendants, pursuant to an agreement that defendants would pay themselves out of the proceeds of said property, and would also assume and pay all other debts of Bryant and Clark to other creditors. Said petition also alleges that plaintiffs, as husband and wife, were the owners, as joint tenants, of an improved town lot in Dunklin county, and that at the same time that Bryant and Clark pledged their saloon to defendants, plaintiffs entered into a separate contract with defendants, whereby, in addition to assuming the debts of Bryant and Clark, the defendants agreed to place plaintiff J. H. Bryant in charge of said saloon, and furnish him such additional liquors, tobacco, and other supplies as would enable him to continue the saloon business, and out of the sales to be made by him pay the debts of said Bryant and Clark. That in consideration of said last-named agreement plaintiffs conveyed to defendants, by warranty deed, their town lot before mentioned, as security for the performance of said contract on their part. Plaintiffs allege that defendants wholly failed to perform their part of said last-named contract; that they failed to pay the debts of Bryant and Clark; failed to furnish the plaintiffs with any supplies; and turned over said saloon and fixtures to other parties, whereby plaintiffs received no consideration for the aforesaid warranty deed for said town lot; and pray that said deed be canceled. The answer of defendants is a general denial, and a plea of title in the real estate under the warranty deed.

The evidence of plaintiffs sustains the allegations of their petition. They testified that the defendants, who reside in Illinois, obtained the warranty deed for the town lot in dispute through a verbal contract entered into for them by their agent, one Ike Levy. That defendants failed entirely to perform the contract on their part. Plaintiffs also gave evidence to the effect that the saloon, fixtures, and liquors pledged to defendants were worth much more than the entire amount of the indebtedness of Bryant and Clark; and that said property was not pledged by reason of the insolvency or inability of Bryant and Clark to meet their obligations, but solely on account of a personal quarrel between Bryant and Clark on account of which they could no longer continue as partners. One P. P. Bryant, a brother of plaintiff J. H. Bryant, also testified that he was present when Cora Bryant signed the deed, and heard defendants' agent tell her it was only a mortgage; and that in order to induce her to sign the deed said agent promised her that the lot would be reconveyed to her in 60 days. Two other witnesses testified to practically the same facts as plaintiffs; one of...