Vette v. Hackman
| Decision Date | 18 February 1922 |
| Citation | 237 S.W. 802,292 Mo. 138 |
| Parties | JOHN H. VETTE, Appellant, v. FRANK X. HACKMAN |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Affirmed.
Alphonso Howe and Richard A. Jones for appellant.
(1) The burden of proof was upon the defendant to establish by a preponderance of the evidence the facts necessary to his fourth defense. Tested by the conceded facts of record, the transaction sought to be established by the testimony of defendant is unbelievable. (2) The allegations made and evidence adduced on his behalf in aid of the three other claims of defense pleaded by defendant substantially negative probability of the existence of the facts alleged in support of the fourth. (3) The transaction claimed was manifestly unlawful. Hurst Automatic Switch Co. v. Trust Co., 291 Mo. 54; Borth v. Proctor, 219 S.W. 72. (4) Defendant, his integrity of character for veracity impeached exhibits another phase of delinquency, by seeking to join with him his office and business associates in an attempted selfstultification by claim of participation in an illegal transaction destructive of the integrity of a public sale. That the law will not presume any such transaction, will not determine it to exist until established by the clear preponderance of credible evidence, is settled, and it is equally well determined that the participant may not seek advantage from such conduct, or offer it or its consequence as a reason for release from his obligation.
Seneca C. Taylor and Henry Higginbotham for respondent.
(1) One who makes representations upon which he expects another to act and upon which such other relies and is induced to act to his detriment, will be estopped to question the truth of what was represented to the other party to his injury. State Bank v. Frame, 112 Mo. 513; Moore v. Bank of Commerce, 52 Mo. 377; Delisi v. Ficarrotta, 135 N.Y.S. 653. (2) The purchaser, either at a judicial sale or one under a deed of trust, who is guilty of any fraud, trick or device, the object of which is to obtain the property at less than its value and succeeds in doing so, will not be permitted to enjoy the fruits of his purchase. Keiser v. Gammon, 95 Mo. 224; Stewart v. Nelson, 25 Mo. 309; Martin v. Blight's Heirs, 4 J. J. Marshall, 491; Neal v. Stone, 20 Mo. 296; Stine v. Wilkson, 10 Mo. 94; Somerville v. Hellman, 210 Mo. 575; Orr v. McKee, 134 Mo. 78; Clarkson v. Creely, 40 Mo. 114; Hall v. Cushman, 14 N.H. 171. (3) There was nothing illegal or against the policy of the law on the part of defendant Hackman. Boyd v. Jones, 60 Mo. 454; Stewart v. Nelson, 25 Mo. 309; Stewart v. Severance, 43 Mo. 322; Lee v. Lee, 19 Mo. 420; Murphy v. DeFrance, 105 Mo. 53; Baier v. Berberich, 6 Mo.App. 537, 77 Mo. 413; Hopkins v. Ensign, 122 N.Y. 144; DeBaun v. Brand, 61 N.J.L. 624; Delisi v. Ficarrotta, 135 N.Y.S. 653; Barnes v. Morrison, 97 Va. 372; Lay v. Brown, 106 Ark. 1; Werner v. Denver Water Co., 40 Colo. 239; 2 Elliott on Contracts, sec. 761; 13 C. J. sec. 392, p. 451; 3 Am. & Eng. Ency. Law (2 Ed.) pp. 506-507. (4) The burden is upon the appellant to affirmatively show by the record that prejudicial error has been committed by the trial court. All presumptions are in favor of the correctness of the proceedings of that court, and if a record is susceptible of two interpretations, that will be given it which will sustain the judgment of the lower court. Where no error of law supervenes, all obscurities and ambiguities and all inferences which could be made from the evidence and about which reasonable minds might differ, are foreclosed by the finding and judgment of the trial court. St. Louis Ins. Co. v. Cohen, 9 Mo. 249; Riney v. Vanlandingham, 9 Mo. 475; Hattan v. St. Louis, 264 Mo. 646; Husted v. Ry. Co., 143 Mo.App. 626; Holloway v. Bradshaw, 223 S.W. 968; Brown v. Bland, 229 S.W. 448; King v. Railroad Co., 143 Mo.App. 279. (5) Presumptions between a wrongdoer and the person wronged should be made in favor of the latter. Costigan v. Mohawk & Hudson Railroad, 2 Denio, 206, 43 Am. Dec. 758; 10 R. C. L. p. 883, sec. 31.
This is an action at law brought in the Circuit Court of the City of St. Louis on a written guaranty made by the defendant to the plaintiff to secure the payment of a deed of trust. Upon a trial, a jury being waived, the court found in favor of the defendant, from which judgment this appeal has been perfected.
The guaranty in question was as follows:
The petition pleads the execution of the guaranty and the deed of trust therein mentioned; the making of the principal note for $ 15,500, due on or before two years, and four semi-annual interest notes for the sum of $ 465, each with eight per cent interest thereon from maturity, also secured by the deed of trust; the payment of three of said interest notes and a default in the payment of the fourth and the principal note; demand of payment and failure to pay; that the deed of trust was foreclosed according to law and the property sold at public sale on the 8th day of September, 1914, for the sum of $ 10,000; that after paying the charges of the trustee's sale and the last interest note, the trustee had in his hands a balance of $ 9,255.29, which was credited upon the principal note; that after crediting said note with all payments thereon, all of which is specifically pleaded, there remained due and unpaid on said principal note the sum of $ 9,891.45 with interest thereon from September 8, 1914; that plaintiff has made demand of the defendant for the payment of said sum, which has been refused; wherefore judgment is prayed for in the amount stated.
The answer was first a general denial.
Second, that in May, 1914, one Dunaway and wife, the then owners of the real estate described in the deed of trust, conveyed a portion of same to the plaintiff upon his agreement to accept and his acceptance of such conveyance in full payment and ratification of the notes secured by said deed of trust, and that thereby said note sued on was paid, settled and discharged.
Third, that in July, 1911, plaintiff, without the consent of the defendant, released three of the lots covered by said deed of trust and that by reason of said release, defendant's guaranty was so far altered that he was released from liability thereunder.
Fourth, that plaintiff delayed in making the foreclosure and sold the real estate at an inopportune time at the inadequate sum of $ 10,000; that if properly sold, the property would have brought an amount in excess of the amount due under the deed of trust; that having acquired the property under such circumstances, the plaintiff is more than repaid for the amount due on said notes and has lost nothing in having made the loan.
Fifth, that after the plaintiff began to advertise the land for sale under the deed of trust, the plaintiff met the defendant and told him that the real estate advertised was worth much more than the amount due the plaintiff on the notes secured by the deed of trust, and that he would buy in said property for the amount due upon the notes if no one else bid a larger sum, and that plaintiff told defendant that he need not concern himself about the sale of said property and that there would be no deficiency in the sale of same and that he would see that it brought the amount of the secured notes; that relying upon said assurance, defendant did not attend the sale and did not attempt to interest others in said property, so as to prevent the sacrifice of same. That thereby plaintiff so misled the defendant that plaintiff is estopped to claim that the price at which he purchased the property at said sale is the market value thereof; and is estopped to claim any sum or sums from defendant on account of the guaranty set forth in plaintiff's petition.
The reply pleads, first, the judgment of the Circuit Court of the City of St. Louis in Dunaway et al. v. Alewel et al., affirmed by the Supreme Court prior to the trial in the instant case and reported in 204 S.W. 726, as a former adjudication of the matters set up in the second defense in the answer; second, specific denials of the matters set up in the third subdivision of the answer; third, an admission that plaintiff did release the three lots mentioned in defendant's answer, subdivision 3, but that said release was made at the instance and request of and with the full knowledge and consent of the defendant and that the consideration for said release was credited upon the mortgage note for the benefit of the defendant and with his knowledge; fourth, plaintiff denies each and every other allegation in said answer set forth and contained.
After the decision in Dunaway et al. v. Alewel et al., supra, the defense set up in subdivision two of the answer as above summarized and the first plea in the reply relating thereto were withdrawn and are, therefore, not for consideration. The execution of the guaranty under oath was admitted.
The trial resulted in a finding in favor of the plaintiff on all of the defenses pleaded in the answer except the fourth and fifth, which, save as to the alleged unreasonable delay pleaded in the fourth, were found in favor of the defendant, and a judgment rendered thereon.
The material portion of the fourth defense, omitting therefrom the allegation as to unreasonable delay in the foreclosure is that the plaintiff in acquiring...
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