Tremain v. Dyott
Decision Date | 08 January 1912 |
Citation | 161 Mo. App. 217,142 S.W. 760 |
Parties | TREMAIN v. DYOTT. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Howell County; W. N. Evans, Judge.
Action by Clara Tremain against John C. Dyott. Judgment for plaintiff. Defendant appeals. Affirmed.
O. F. Wayland, J. P. Swaim, and M. E. Morrow, for appellant.
This was an action brought on June 24, 1908, by Clara Tremain, in the Howell county circuit court against John C. Dyott, the surviving joint obligor in a bond executed to plaintiff on January 25, 1904, at Elmira, N. Y. The prayer in the plaintiff's petition was for $1,825 with interest. Upon trial before the court sitting as a jury, plaintiff was awarded judgment for $1,200 and interest in the sum of $210, making a total of $1.410. Defendant has appealed.
The bond sued on in this action is as follows: Then follows a notary's acknowledgment.
The plaintiff copied in her petition an agreement purporting to have been entered into between herself and George W. Neily on January 25, 1904. This written agreement, which was read in evidence without objection, recites that it was entered into on said date in the state of New York, between George W. Neily of Elmira, N. Y., and Clara Tremain of Westfield, Pa., providing that whereas Neily had purchased an undivided one-half interest in certain lands in Shannon county, Mo., comprising some 4,130 acres, and whereas Clara Tremain desired to purchase an undivided one-third interest in said undivided one-half interest, for the sum of $1,825, it was agreed that upon payment of said amount Neily would convey to her such an interest, and that Clara Tremain should become a joint owner in said property, she agreeing to pay her share of the expenses, attorney's fees, taxes, and other disbursements expended by Neily in caring for or selling or retaining said property; and she therein appointed Neily her attorney to sell and dispose of said property at such a figure as he (Neily) should deem advisable, it being understood that the figure would be a fair profit over and above the expenses and purchase price; and it was agreed that, in case a sale was made, she was to receive her share of the increase. This agreement was signed by George W. Neily and Clara Tremain. It is merely an agreement to convey. No deed or other evidence was introduced to show that the conveyance was ever actually made. On the contrary, it appears from defendant's testimony that he and Neily had bought the land in Shannon county over a year before the date of the execution of the bond; that they bought it through Mr. Hogan of the West Plains Bank, the price being $10,644.50; that he and Neily were to each pay half, but before the deed was closed Neily became involved in labor troubles in New York which tied up his accounts; that he (Dyott) paid the entire amount and took the title in his name; that Neily never had any record title; that Neily never put any money into it until a short time before it was sold when he put in $2,344.25; that the land was sold with Neily's consent for $13,000; and that he (Dyott) made the deeds. The time of the sale is not fixed, but Neily died on October 25, 1905, and it was before that time. Defendant also testified that he had paid to George W. Neily as agent of Clara Tremain the full amount of the bond, stating that after the sale was made he gave Neily one check for $500 and another for $100. The deposition of Neily's banker was read, wherein it was shown that such checks were deposited by Neily to his credit.
Evidence was introduced by the plaintiff showing the law of the state of New York (where the bond sued on was executed) concerning the liability of surviving joint debtors, to meet a count in defendant's answer charging defect of parties, in that the personal representatives of George W. Neily were not joined as parties defendant. The rule is that matters bearing upon the execution, interpretation, and validity of a contract are to be determined by the law of the place where it is made. Hartmann v. Railway Co., 39 Mo. App., loc. cit. 93; Johnston v. Gawtry, 83...
To continue reading
Request your trial-
Menees v. Cowgill
...401; Waggoner v. Waggoner, 287 Mo. 567, 229 S.W. 1064; 38 C.J., Marriage, 1279; 15 C.J.S., Conflict of Laws, 906; Tremain v. Dyott, 161 Mo. App. 217, 142 S.W. 760; Brotherhood of Railroad Trainmen v. Adams, 222 Mo. App. 689, 5 S.W. (2d) 96; Buck v. Meyer, 195 Mo. App. 287, 190 S.W. 997; Sec......
-
Illinois Fuel Co. v. M. & O. Railroad Co.
...135 Mo. 661, l.c. 674; Hartmann v. Ry. Co., 39 Mo. App. 88, l.c. 93; Burridge v. N.Y. Life Ins. Co., 211 Mo. 158, l.c. 162; and Tremain v. Dyott, 161 Mo. App. 217, l.c. 221. Without expressing any opinion as to whether or not the intention of the parties is finally determinative of the law ......
-
Illinois Fuel Co. v. Mobile & O.R. Co.
... ... 661, l. c. 674; Hartmann v. Ry. Co., 39 Mo.App ... 88, l. c. 93; Burridge v. N. Y. Life Ins. Co., 211 ... Mo. 158, l. c. 162; and Tremain v. Dyott, 161 ... Mo.App. 217, l. c. 221. Without expressing any opinion as to ... whether or not the intention of the parties is finally ... ...
-
Menees v. Cowgill
... ... 401; Waggoner v. Waggoner, 287 Mo. 567, 229 S.W ... 1064; 38 C.J., Marriage, 1279; 15 C.J.S., Conflict of Laws, ... 906; Tremain v. Dyott, 161 Mo.App. 217, 142 S.W ... 760; Brotherhood of Railroad Trainmen v. Adams, 222 ... Mo.App. 689, 5 S.W.2d 96; Buck v. Meyer, 195 ... ...