Tucker v. Dolan

Decision Date24 January 1905
PartiesTUCKER, Appellant, v. DOLAN, Respondent
CourtMissouri Court of Appeals

Appeal from Knox Circuit Court.--Hon. Edwin R. McKee, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James Dorian and O. D. Jones for appellant.

(1) There was no evidence on which to submit the issue of new agreement and release of the notes. (a) There was no allegation of an intention or agreement of plaintiff to surrender the notes without payment. (b) All of defendant's allegations in the answer and testimony to that effect was in the statute of frauds, pleaded in the reply, objected to on the trial on that ground, and asked to be excluded and withdrawn from the jury by instructions. The first oral agreement, possession and giving notes for, and part payment of the purchase-money, took it out of the statute and made it valid. Young v. Montgomery, 28 Mo. 604; Price v. Hart, 29 Mo. 171; Adair v Adair, 78 Mo. 630; Bishop on Cont., sec. 164. To take the case out of the statute of frauds requiring certain agreements to be in writing, the contract must be evidenced by writing and can not be pieced out or added to by oral testimony. Buckman v. Dry Goods Co., 91 Mo.App. 454; Werner v. Mayer Co., 161 Mo. 112, 61 S.W. 644; Newman v. Bank, 70 Mo.App. 135. (2) The payment of a part of the debt is no consideration for an agreement to release the rest of it. "But were it necessary to do so it is sufficient to say, that it is the established rule of this State that a part payment of a debt is ordinarily no satisfaction of the residue." Young v Schofield, 132 Mo. 650, 34 S.W. 497; Winters v. Railroad, 160 Mo. 159, 61 S.W. 606; Goodson v. Assn., 91 Mo.App. 339. Here there was no dispute as to the amount due. That was determined by the settlement; the debt was all due. (3) As to the four hundred and sixty dollar note defendant admits he borrowed the money, gave note for it, bought the cattle, took them home and kept them about three years. It was the duty of the court to construe it and the note and plainly state their legal effect in law to the jury. Chapman v. Railroad, 114 Mo. 542, 21 S.W. 858; Lumber Co. v. Warner, 93 Mo. 374; Enterprise Works v. Sawyer, 55 Mo.App. 15. The court simply submitted the question of law to the jury whether the plaintiff "owned the cattle." It can not make a new contract for the parties nor ignore the one that had been made. Machine Co. v. Bobst, 56 Mo.App. 427; Johnson Co. v. Wood, 84 Mo. 489.

L. F. Cottey and F. H. McCullough for respondent.

(1) The question as to whether or not there was an agreement between plaintiff and defendant to settle for $ 2,200 was fairly submitted to the jury under appropriate instructions, and the finding of the jury is conclusive. Floerke v. Distilling Co., 20 Mo.App. 76; Deutmann v. Kilpatrick, 46 Mo.App. 624; Kronenberger v. Binz, 56 Mo. 121. (2) The evidence of the plaintiff and the defendant, clearly discloses that the indebtedness between them was in dispute during all the time of its existence. The record shows that there was, about the month of September, or October, 1900, a wellunderstood compromise of such indebtedness, which was faithfully carried out on the part of the defendant. It is well-settled law that a compromise made and performed under such circumstances will be upheld. Riley v. Kershan, 52 Mo. 224; Coal Co. v. St. Louis, 145 Mo. 651, 47 S.W. 563; Andrews v. Contracting Co., 100 Mo.App. 599, 75 S.W. 178; McCormick v. St. Louis, 166 Mo. 335, 65 S.W. 1038. (3) When plaintiff accepted the $ 2,200 from defendant and executed and delivered the deed to the farm to defendant and his wife, in compliance with the previous agreement between plaintiff and defendant, it was equivalent to and in effect a conditional tender by defendant and acceptance by plaintiff. The settlement so made was legal and binding and will be upheld. Plaintiff, having accepted the tender and delivered the deed, is estopped to complain now that it was insufficient. The acceptance of a tender made upon a condition distinctly expressed, or necessarily implied from the circumstances is an acceptance of the condition. Lee v. Dodd, 20 Mo.App. 271; Maack v. Schneider, 51 Mo.App. 92; s. c., 57 Mo.App. 431; School Board v. Hull, 72 Mo.App. 403; Adams v. Helm, 55 Mo. 271. (4) Counsel for plaintiff contends that the agreement between plaintiff and defendant for payment of the $ 2,200 and the making of the deed and the surrender of the old notes was within the statute of frauds, requiring certain agreements to be in writing. The jury found that said agreement had been performed. The law is well settled that the performance of the contract by one contracting party forecloses his adversary from interposing the statute of frauds as a defense. Johnson v. Reading, 36 Mo.App. 315; Smock v. Smock, 37 Mo.App. 67; Marks v. Davis, 72 Mo.App. 562; Chenoweth v. Express Co., 93 Mo.App. 191; Suggett v. Carson, 26 Mo. 221; Self v. Cordell, 45 Mo. 345; McCornell v. Brayner, 63 Mo. 461; Winters v. Cherry, 78 Mo. 344; Nally v. Reading, 107 Mo. 355, 17 S.W. 978; Bless v. Jenkins, 129 Mo. 657, 31 S.W. 938; Nowack v. Berger, 133 Mo. 24, 34 S.W. 489. (5) With respect to the note for $ 460 plaintiff's position on the pleadings and evidence was, that the contract concerning the cattle was intended to be security for the note; that the cattle belonged to defendant, and that defendant was liable for the note. The contract was one from which different inferences might be drawn and were actually drawn by the parties to it. Under such circumstances it is well settled that it would have been error for the court to have refused to submit the question of fact of the ownership of the cattle to the jury. Blanke v. Dunnerman, 67 Mo.App. 596; Mfg. Co. v. Mertz & Hale, 80 S.W. 684; Wilcox v. Baer, 85 Mo.App. 592.

OPINION

GOODE, J.

The petition in this case declares on three separate causes of action, each being a promissory note. The first count, or paragraph, is founded on a note for $ 1,480, dated February 1, 1896, due three years after date and drawing seven per cent interest. This note and another of the same date for $ 1,500, drawing the same rate of interest, were executed by Dolan to Tucker for the purchase-money of eighty-five acres of land in Knox county. The note for $ 1,500 is not in suit as it had been cancelled and surrendered before the suit was instituted. This land was bought by Tucker from Virginia Fickel September 25, 1896, for $ 3,300, and was conveyed by Tucker to Dolan and his wife, Mary C. Dolan, September 28 1900. It was sold to Dolan by a verbal contract not later than December 2, 1896, and Dolan put into possession, the deed being executed nearly four years afterwards. Why the note for $ 1,500 was surrendered will appear below. Originally there was a separate action on the note for $ 1,480, the petition praying not only a judgment for the amount of the note, but the enforcement of a vendor's lien against the land. The demand for the lien was withdrawn and that action was consolidated with one on the two notes which are the subjects of the second and third counts of the petition. Before stating the facts in regard to the latter notes it will be convenient to go more fully into the land transactions out of which the note declared on in the first count grew. The plaintiff swore he bought that land for Dolan at a price he (plaintiff) deemed excessive, on an understanding that Dolan was to take it off his hands at the same price, and pursuant to that agreement Dolan executed the two notes for $ 1,500 and $ 1,480. The amount of these notes was $ 2,980, and what was done about the difference between that sum and the $ 3,300 Tucker said Dolan was to pay, was not explained. Another fact which is obscure, is why the two notes were dated February 1, 1896, nearly eight months before Tucker had purchased the land from Mrs. Fickel and that long, or longer, before he put Dolan into possession of it. Tucker's explanation is that the notes were thus dated because Dolan expected to have some money in February, 1897, and could then pay the interest. But he admitted Dolan would only owe interest from September, 1896, and so no intelligible reason for dating the notes back was given. The defendant testified that Tucker, on his own motion, bought the land from Mrs. Fickel, but sold it to him (defendant) for $ 2,980 about December, 1896; that he executed the two notes for the purchase price not knowing they bore the date of February 1st, which was wrong. It should be stated that Tucker is a man ninety years old; that both he and Dolan are very illiterate and the latter is hard of hearing. The evidence discloses that they conducted their business in a careless manner and without a clear understanding of the effect of their acts. As stated, Dolan went into possession of the land in the latter part of the autumn or the beginning of the winter of 1896. He made valuable improvements on it from time to time and paid sums on the notes; but how much he paid before Tucker conveyed the land to him and his wife in September, 1900, is in dispute. The defendant testified that he had made payments at different times to the amount of $ 895.50, which is about sixty dollars more than the interest on the notes for the four years. The plaintiff swore only about $ 240 had been paid, or nearly six hundred dollars less than the interest. The defendant said that in September, 1900, both the notes given for the purchase-money of the land were discharged pursuant to an agreement then entered into between him and the plaintiff; that plaintiff at that time proposed that if defendant would pay $ 2,200 more than had been already paid on the notes, that sum would be received as full payment, the notes surrendered...

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  • Mears Mining Company v. Maryland Casualty Company
    • United States
    • Court of Appeal of Missouri (US)
    • March 4, 1912
    ...... Co. v. Baker, 99 Mo.App. 660; Winter v. Railroad, 73 Mo.App. 173, 160 Mo. 159; Chamberlain. v. Smith, 110 Mo.App. 657; Tucker v. Dolan, 109. Mo.App. 442; Hanson v. Crawford, 130 Mo.App. 232;. Clay v. Lakeman, 101 Mo.App. 563; Reinhold v. Kerrigan, 85 Mo.App. 256; ......

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