Adams v. Helm

• Decision Date: 28 February 1874
• Citation: 55 Mo. 468
• Court: Missouri Supreme Court
• Parties: GEORGE W. ADAMS AND JAMES M. SCOTT, Defendants in Error, v. MARY A. HELM, Exec'x &c., Plaintiff in Error.

55 Mo. 468

GEORGE W. ADAMS AND JAMES M. SCOTT, Defendants in Error,

v.MARY A. HELM, Exec'x &c., Plaintiff in Error.

Supreme Court of Missouri.

February Term, 1874.

Error to Linn County Court of Common Pleas.

G. D. Burgess and Harry Lander, for Plaintiff in Error.

I. Our statute (Wagn. Stat., 1041, § 13) does not allow the court to submit the whole issue to the jury.

Samuel P. Huston & George W. Easley, for Defendants in Error.

ADAMS, Judge delivered the opinion of the court.

This was an action in the nature of a bill in equity to compel the defendants to surrender and cancel certain notes secured by a deed of trust on a number of town lots, and to acknowledge satisfaction of the deed of trust.

The plaintiffs alleged in their petition, that the whole amount of all the notes secured by the deed of trust had been fully paid.

The defendant denied the allegation of payment, and alleged that a large amount was still unpaid. The defendant, Helm, further alleged in her answer, that the plaintiffs had delivered her certain notes, secured by a deed of trust, as collateral security, and that she still held them as collaterals, and offered to deliver them up. The plaintiff replied to this part of the answer, and denied that said notes were delivered as collaterals, and charged that they were tendered and delivered as full payment of the balance due under the deed of trust held by defendant.

The court, against the objection of defendant, submitted the issue of payment to a jury, and the jury found it in favor of plaintiffs.

The deed of trust referred to contains this provision: “Said Helm agrees to take notes secured by a deed of trust on lots sold, in sums of one hundred dollars and less, running one and two years, if bearing the same rate of interest, to be received as cash.”

The plaintiffs, after all the notes secured by the deed of trust in suit became due, tendered in discharge of the balance--which had not been paid-- notes secured by a deed of trust to the amount of some forty-three hundred dollars. When this tender was made, the defendant took the notes and deed of trust, remarking at the time, that she would not receive them in satisfaction, but only as collaterals.

The plaintiff replied, that they tendered them in full satisfaction, and if she kept them she must take them as tendered. The defendant did not return the notes or offer to return them when tendered, but held on to them, protesting that she held them as collaterals; and the plaintiffs insisting that they delivered them as a tender under the deed of trust in full satisfaction of what was due. This was substantially the evidence in regard to the alleged payment, and that was the material matter in dispute.

The defendant asked the court to disregard the verdict of the jury, which the court refused to do. The defendant then offered to amend her answer before the court proceeded further with the case, but the court refused to permit the amendment. The amendment offered was substantially, that Adams had suffered judgments to be rendered against him before the execution of the mortgage securing the notes tendered as collaterals on the deed of trust held by defendant, of which defendant was ignorant, and that he assured defendant, that the property was unincumbered, and also that the plaintiffs had conveyed away...