Alropa Corporation v. Harry M. Smith
| Decision Date | 07 February 1947 |
| Docket Number | No. 20770.,20770. |
| Citation | 199 S.W.2d 866 |
| Parties | ALROPA CORPORATION, A CORPORATION, APPELLANT v. HARRY MARVIN SMITH RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jackson County. — Hon. Paul A. Buzzard, J.
AFFIRMED IN PART. REVERSED IN PART.
Granoff & Meyerhardt, Maurice Weinberger, for appellant.
(1) The court erred in sustaining defendant's motion for new trial, on the grounds "that the court erred in directing a verdict for the plaintiff, and that the court erred in refusing to submit said cause to the jury." Sec. 1116, R.S. Mo. 1939. Waugh v. McCormick, (Mo. App.) 93 S.W. 2d 77. Section 3345, R.S. Mo. 1939. Thompson v. McCune, 333 Mo. 758, 63 S.W. 2d 41. North Side Finance Co. v. Sparr, (Mo. App.) 78 S.W. 2d 892. Emory v. Emory, (Mo.) 53 S.W. 2d 908, l.c. 913. Pflanz v. Pflanz, 237 Mo. App. 873, 177 S.W. 2d 631, l.c. 635 Booker v. Booker, (Mo. App.) 192 S.W. 2d 21. Sec. 1012, R.S. Mo. 1939. Sec. 1013, R.S. Mo. 1939. Sec. 1021, R.S. Mo. 1939. Sec. 3344, R.S. Mo. 1939. Sec. 95.11, Florida Statutes of 1941. Sec. 95.07, Florida Statutes of 1941. Sec. 847, R.S. Mo. 1939. Cracowaner v. Carlton National Bank, 98 Fla. 792, 124 So. 275. Browne v. Browne, 17 Fla. 607. Brownson v. Hannah, 93 Fla. 223, 111 So. 731. State of Kansas ex rel. v. U.S. Fid. & Guar. Co., 322 Mo. 121, 14 S.W. 2d 576, l.c. 581, 582. Annotation, 149 A.L.R. 1235. Daniels v. Gallagher, (Mo. App.) 189 S.W. 644.
William A Kitchen for respondent.
(1) The trial court was correct in awarding defendant a new trial. Wilson's Estate v. Wilson, 164 S.W. 2d 73. Nogalski v. Foundation Co., 199 S.W. (Mo. Sup.) 176, 180. Peerless Fixture Co. v. Frick, 133 S.W. 2d 1089, 1093. (2) An appellate court will affirm a judgment on appeal from an order sustaining a motion for a new trial, if it can be sustained on any ground shown by the record and proceedings in the case. If the trial court's reason for granting a new trial is sufficient, the appellate court is bound thereby. Thayer v. Halterman, 10 S.W. 2d 663. (3) The surrender of the deeds by Mrs. Smith to the Okeechobee Company as an extinguishment of the debt and its retention of same is sufficient in law to operate as an accord and satisfaction of the alleged debt herein sued on. Denver Joint Stock Land Bank v. Sherman, 236 Mo. App. 191, 152 S.W. 2d 702. Randolph v. Moberly Hunting & Fishing Club, 321 Mo. 955, 15 S.W. 2d 834. 31 C.J.S. 236, Par. 659. 1 R.C.L. 184, Par. 14. 1 R.C.L. 187, Par. 18. (4) The return of the deeds and the retention of same by Okeechobee, as constituting an acceptance and release of the mortgages and notes, presents a question of fact for a jury. Stark v. Sherf, 207 S.W. 863. Lee v. Mitcham, 98 F. 2d 298, 300. Griffith v. Creighton, 61 Mo. App. 1. Taylor v. Snowhill First Natl. Bk., 190 N.C. 175, 129 S.E. 405. Citizens State Bk. v. Straughn, 118 Kan. 482, 236 Pac. 119. (5) The satisfaction or discharge of a mortgage may be presumed from a very great lapse of time without proceedings to enforce it. 41 C.J. 790, 805, Par. 940, 941. (6) The court erred in refusing to render judgment for the defendant on the pleadings, and particularly in failing and refusing to render judgment for the defendant on the question of this action being barred by the Florida statute of limitations, which limits the right of action on contracts not under seal to five years. Christner v. C., R.I. & P., 228 Mo. App. 220, 64 S.W. 2d 752. Farthing v. Sams, 296 Mo. 442, 247 S.W. 111. Alropa Corp. v. Kirchwehm, 138 Ohio St. 30, 33 N.E. 2d 655. Payne v. Kirchwehm, 141 Ohio St. 384, 48 N.E. 2d 224. Alropa Corp. v. Kirchwehm, 36 N.E. 2d 511.
This is an action in two counts, begun on May 4, 1938. It is based on 6 notes, and two mortgages securing the same on Florida real estate, executed in Florida by the defendant and his wife, Ray Morse Smith, to Okeechobee Company, and assigned to plaintiff. During the pendency of the action defendant's wife died and the case was dismissed as to her.
At the conclusion of the evidence the court sustained plaintiff's motion for a directed verdict on each count for the principal amount of the last maturing note sued upon therein, together with the unpaid interest thereon. Plaintiff did not ask for a verdict for the amount of the first two maturing notes. This resulted in a verdict and judgment in favor of plaintiff in the sum of $2298.55 on the first count and $598.15 on the second count. Thereafter, defendant's motion for a new trial was sustained, and plaintiff has appealed.
The first count involves a mortgage and three notes executed by the defendant, Smith, and his wife, on June 11, 1925 to Okeechobee Company for $887.50 each. These notes matured, respectively, one, two and three years after date. The second count involves a mortgage and three notes, in the sum of $231.25 each, executed on June 16, 1925, and due, respectively, one, two and three years after date. The notes and mortgages were assigned to plaintiff on October 20, 1937. The mortgages recited that the mortgagors conveyed a fee simple title in the property. They were never foreclosed.
Defendant's amended answer consists of an unverified general denial, followed by a plea of the Missouri statute of limitations and the five-year Florida statute of imitations dealing with unsealed instruments. The answer also alleges that, after the execution of the notes and mortgages, the defendant and his wife learned that the property was swamp land and they refused to make payments on the mortgages and notes;
In its reply plaintiff denied all of the new matters set up in the answer and alleged that the Florida twenty-year statue of limitations, dealing with instruments under seal, applied to the facts in this case.
The evidence shows that each of the notes and mortgages was given as a part of the purchase price of a lot upon which the mortgage was executed; that at the time of their execution defendant and his wife were in Florida; that in October 1926 defendant returned to Kansas City; that his wife remained in Florida for about a year thereafter, when she also returned to Kansas City. The purchase of the lots and all dealings had with the Okeechobee Company were by defendant's wife, alone. After defendant returned to Kansas City his wife received, in Florida, two letters from the Okeechobee Company addressed to him. The first of these letters, dated May 31, 1927, called the attention of the defendant to the fact that, on June 16 of that year, there would be due interest in the amount of $83.25. This interest payment was upon the notes covered by the second count in suit. It also stated that the principal of two of said notes would become due on said date and that the payment of the principal of the notes would be extended if the interest and the taxes were paid by the defendant; but if defendant desired to make no further payments "we will relieve you of further responsibility by turning back to you your mortgage and notes in exchange for a deed returning the property to us".
The second letter was dated July 8, 1927, and stated that no reply had been made to the first letter and restating what was said in the first letter, including the offer to return the mortgage and notes mentioned in the first count of the petition in exchange for a deed returning the property to it.
The deposition of defendant's wife was introduced in evidence. She testified, in effect, that when she received these letters she, sometime prior to the month of September 1927, not only returned the deed to the property mentioned in the first count to the Okeechobee Company but, also, mailed to it the deed to the property covered by the mortgage mentioned in the second count. She further testified that she did not send a deed conveying back the title but merely the deeds received from the company to herself and the defendant; that, thereafter, nothing was ever heard from the Okeechobee Company about the matter. Defendant testified that he, likewise, had never heard anything further from that company. The evidence shows that plaintiff made no demand for the payment of the indebtedness prior to the filing of this suit.
Defendant's wife further testified: .
Plaintiff insists that the court erred in sustaining defendant's motion for a new trial; that the action was not barred by the statute of limitations. The instruments are under seal according to the law of Florida. (See Cracowaner, et al., v. Carlton National Bank, 124 So. 275.) Section 95.11 (Fla. Statutes 1941) provides: . (Italics ours.)
Section 95.07 provides: ...
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