Abney v. Marshall

• Decision Date: 16 April 1907
• Citation: 124 Mo. App. 483,101 S.W. 694
• Parties: ABNEY v. MARSHALL.
• Court: Missouri Court of Appeals

101 S.W. 694

124 Mo. A. 483

ABNEY v. MARSHALL.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

1. EVIDENCE — PRESUMPTIONS — FAILURE TO PRODUCE EVIDENCE.

As against objection to oral testimony, that defendant on selling a team to plaintiff agreed to furnish work to plaintiff whereby he could pay the monthly installments of the price, that this varied the written contract, it will be presumed, in the absence of proof of the contents of the purchase-money note, that it contained such agreement.

2. SAME—FINDINGS OF FACT.

The verdict, depending on a finding as to an issue of fact properly submitted on conflicting evidence, will not be disturbed on appeal.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by W. A. Abney against James Marshall. Judgment for plaintiff. Defendant appeals. Affirmed.

Omitting caption and signatures, the petition is as follows: "Plaintiff states that on, to wit, the 18th day of November, 1901, he bought a log team, consisting of eight head of oxen, one wagon, log chains, and 17 head hogs from the firm of Marshall & Warren, composed of James Marshall and Lige Warren, for the sum of $800, due in 16 months, for which a note was given, and there was an agreement said $800 should be paid in hauling logs as much as $50 each month. Further states said firm agreed to employ plaintiff hauling logs to their sawmill so as to enable him to meet said obligation of $50 per month and to pay his provision, feed, and store bill over and above said $50 per month to be applied on the price of team. That thereafter said Marshall bought out his partner's interest in said business and assumed to perform said partnership obligation and contract with this plaintiff, and this plaintiff accepted the individual obligation of said Marshall in that behalf. That this plaintiff entered upon said contract and faithfully performed the same for five months and seven days and paid in hauling all his bills he had contracted, and in addition thereto $300 on the debt for which the $800 note was given, and was ready, willing, and able to perform the same in full, and requested the right so to do of the defendant. That defendant refused and failed to perform his contract when requested to do so, and turned plaintiff off, and plaintiff sought and obtained employment with Charles Jones, of Bell City, in Stoddard county, and carried his team there by the consent of said Marshall. Wherefore said Marshall seized plaintiff's team, hogs, wagon, and chains without authority, and before the maturity of said note, and appropriated them to his own use by selling them under said mortgage in violation of the terms of said contract; that by reason of the premises plaintiff is damaged in the sum of $800, for which sum and costs he prays for judgment."

The answer is as follows: "Defendant for his answer to plaintiff's amended petition denies each and every allegation in the petition and prays judgment. Further answering, the defendant charges that to secure the $800 named in plaintiff's petition as the purchase price of certain cattle, etc., the plaintiff executed a chattel mortgage on the property named. That said mortgage provided that in case of a sale or removal, or an attempt to sell or remove, the mortgaged property from the county of Scott, state of Missouri, said note for $800 should, at the election of defendant, became immediately due and payable. That plaintiff sold, without consent of mortgagee, a portion of the hogs named in said mortgage, and he did not account to defendant for the proceeds thereof. That said plaintiff, without mortgagee's consent, removed said property from Scott county, Mo., in violation of the terms of said mortgage, and defendant thereupon exercised his right of election, and held the note and debt to be due and payable. That under the terms of said mortgage defendant seized said property and sold same at public sale under the terms and conditions named therein and at said sale became the purchaser thereof. Having fully answered, defendant prays judgment."

Marsh Arnold, for appellant. H. C. O'Bryan, for respondent.

BLAND, P. J. (after stating the facts)....