Lionberger v. Pohlman

• Citation: 16 Mo.App. 392
• Parties: JOHN R. LIONBERGER, ASSIGNEE, Appellant, v. W. POHLMAN, Respondent.
• Decision Date: 20 January 1885
• Court: Court of Appeal of Missouri (US)

16 Mo.App. 392

JOHN R. LIONBERGER, ASSIGNEE, Appellant,

v.W. POHLMAN, Respondent.

St. Louis Court of Appeals, Missouri.

Jan. 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.

THOMPSON, J., delivered the opinion of the court.

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 $2,338.50; that it was probably a little more, if compound interest were calculated; that on the 30th of December, 1880, the defendant, with his brother, John H. Pohlman, and a young man whom the defendant had procured to buy the property, came to the plaintiff's office with money to take up the note; that he there calculated the amount due to be the sum of $1,838.50; that this was a miscalculation, and that the mistake occurred by his omitting to calculate the interest for one year, which, at ten per cent per annum, would be $500. He testified most positively and unequivocally, that he had never made any agreement to make a discount on the note, and forego the rate of interest which it called for. The note itself was put in evidence with the indorsements thereon. The note and these indorsements show that there was due, on the 30th of December, 1880, approximately, the sum of $2,338.50; it also shows the indorsement made upon the note on that day, at the time when the parties made the final settlement and when it was delivered to the defendant, as follows: “Rec'd Dec. 30, 1880, balance in full on this note, deducting $38.50, in settlement. J. R. Lionberger, assignee.” It is plain beyond a doubt, from this statement, that the plaintiff, when he settled with the defendant and surrendered the note, intended to deduct from the amount due on the note the sum of $38.50 only, and that, in point of fact, he did deduct the sum of $538.50.

The defendant endeavored to show, in conformity with what he had alleged in his answer, that the deduction of this large sum had been made in consideration of the defendant procuring a purchaser for the property, and relieving the assignee from the cost and risk to the estate in his hands of endeavoring to make the amount due by a sale of the property under the deed of trust--the defendant having no other property out of which the amount due could be made. The testimony to support this defence was almost entirely that of John H. Pohlman, a brother and partner of the defendant, who attended to the business and conducted the negotiation with the plaintiff for the defendant. This testimony has been examined with care. It not only fails to negative what is palpable from an inspection of the note and the indorsements upon it, that the parties understood at the time of the settlement that the plaintiff was remitting only $38.50, but it fails to show any agreement, whatever, on the part of the plaintiff to remit any definite sum. It is, moreover, inconsistent with itself, in that it states that when John H. Pohlman met the plaintiff on December 30, 1880, for the purpose of making the final payment and taking up the note, he, Pohlman, stated to the plaintiff that he found the amount due to be $1,700. He does not state how he...