16 Mo.App. 392 (Mo.App. 1885), Lionberger v. Pohlman

Citation:16 Mo.App. 392
Opinion Judge:THOMPSON, J.
Party Name:JOHN R. LIONBERGER, ASSIGNEE, Appellant, v. W. POHLMAN, Respondent.
Attorney:JOHN D. DAVIS, for the appellant. KLEIN & FISSE, for the respondent.
Case Date:January 20, 1885
Court:Court of Appeals of Missouri
 
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Page 392

16 Mo.App. 392 (Mo.App. 1885)

JOHN R. LIONBERGER, ASSIGNEE, Appellant,

v.

W. POHLMAN, Respondent.

Court of Appeals of Missouri, St. Louis.

January 20, 1885

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Reversed and remanded.

JOHN D. DAVIS, for the appellant.

KLEIN & FISSE, for the respondent.

OPINION

THOMPSON, J.

This is an action to recover the sum of five hundred dollars alleged to be still due upon a promissory note of the defendant which the plaintiff released and delivered to the defendant under a mistake. The petition sets forth that the plaintiff is the assignee of the Broadway Savings Bank, and, as such, was the holder of a promissory note for $5,000--executed by the defendant, on the first day of September, 1875, which was secured by a deed of trust upon certain property of the defendant; that payments had been made on the same from time to time, so that, on the 30th of December, 1880, there remained a balance due of $2,338.50; that, on that day, the defendant paid to the plaintiff the sum of $1,800,--the plaintiff, at the time, calculating the amount due to be $1,838.50, and agreeing to throw off $38.50, provided the balance was then paid; " that in calculating the interest due, by mistake he failed to count the interest for one year, amounting to the sum of $500, due upon said note, and that by reason of acting under said mistake, he surrendered said note to defendant, marking the same paid." The petition then avers a subsequent demand by the plaintiff upon the defendant for the payment of the $500, so remitted by mistake, and a refusal to pay the same, and asks for judgment. The answer admits the execution of the note, denies all other allegations of the petition, and then sets up a compromise agreement, by which the plaintiff agreed, in consideration that the defendant himself would sell the property upon which the note was secured by a deed of trust, and with the proceeds of the sale make prompt payment of the note, that he would make a liberal deduction from the note; that, in pursuance of this agreement, the defendant did sell the property for the sum of $4,350--being $650 less than the amount specified in the note without interest, and that, on the 30th of December, 1880, the defendant agreed, in consideration of what the plaintiff had done, to receive $1,800 in full payment and satisfaction of the note; and alleges that there was no mistake or misunderstanding as to the amount due upon the note, but that the deduction which was made, was made in good faith, to carry out the previous understanding between the parties.

The plaintiff testified to the effect that the amount due on the note at the time of the final settlement was not less than...

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