Arnest v. Messerly

• Citation: 17 S.W.2d 670
• Decision Date: 20 May 1929
• Docket Number: No. 16588.,16588.
• Parties: ARNEST v. MESSERLY.
• Court: Court of Appeal of Missouri (US)

17 S.W.2d 670

ARNEST v. MESSERLY.

No. 16588.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be officially published."

Action by C. S. Arnest against C. E. Messerly, administrator of Melvin H. Morris. Judgment for plaintiff, and defendant appeals. Affirmed.

W. W. Blain, of Sedalia, for appellant.

Lawrence Barnett, of Sedalia, for respondent.

BLAND, J.

This is an action on a contract for the sale or return of five promissory notes. There was a verdict and judgment in favor of plaintiff in the sum of $5,292.00. Defendant has appealed.

Defendant is the administrator of the estate of M. H. Morris, deceased. On and prior to March 1st, 1920, the said Morris and W. T. Morris, his brother, were partners doing business under the firm name of Morris Realty and Loan Company. The firm was located in the city of Sedalia and engaged in the loan business.

It is claimed by the plaintiff that on March 1st, 1920, the partnership sold to him five promissory notes, secured by a deed of trust on real estate in Pettis County; that the notes and deed of trust were executed by James J. and Bertha O. Hansen and were dated February 25th, 1920; that he purchased the notes under an agreement that the partnership would repurchase the notes for cash at any time upon sixty days' written notice given it by plaintiff; that said M. H. Morris and his personal representatives had failed and neglected to carry out the agreement to repurchase the notes.

It is the contention of the defendant that his demurrer to the evidence should have been sustained for the reason that there is no evidence that M. H. Morris ever at any time owned the notes in question, or that they were owned by the Morris Realty and Loan Company; that there is no evidence what plaintiff gave for the notes, or from whom he purchased them; that there is no evidence that the contract sued upon relative to the repurchase of loans by the partnership was made at the time the notes were purchased by plaintiff, or that the consideration for the notes was the consideration for the contract.

The contract sued upon reads as follows:

                "W. T. Morris   M. H. Morris   J. W. Sims
                               W. J. Morris
                            "Established 1890
                      "Morris Realty & Loan Company
                  "Real Estate, Loans, Insurance, Rentals
                               "Both Phones
                        "Sedalia, Mo. March 24th, 1917
                

"Received of C. S. Arnest in settlement $3,600 in payment for the Wm. L. Matts farm loan for same amount.

"We hereby agree and obligate ourselves to cash said loan at any time on sixty days' written notice without any brokerage or discount.

                       "[Signed]  Morris Realty & Loan Co
                                    "By M. H. Morris
                                                "3-1-20
                

"The above terms and conditions apply to any or all loans that we have negotiated with C. S. Arnest.

                                 "Morris Realty & Loan Co
                                   "Per M. H. Morris."
                

The petition recites that the notes were sold to plaintiff by M. H. Morris during his lifetime; that they became due on March 1st, 1927; that since the purchase of the notes from M. H. Morris plaintiff has been and still is the owner of said notes for value received and in due course; that at the time of the sale of the notes and as part of the consideration of the contract for the sale M. H. Morris, as a member of the firm of Morris Realty and Loan Company executed and delivered to plaintiff an instrument agreeing and obligating himself to cash said notes any time upon sixty days' written notice to said firm; that the notes became due after the death of the said Morris; that none of them were paid; that there had been a failure on the part of the said Morris and his personal representatives to pay the notes, although proper demand had been made.

The answer consists first of a general denial. It then pleads:

"The alleged contract herein is unilateral —a mere option given to plaintiff and that no consideration is expressed therein; that the said alleged contract does not in any way refer to any of the notes mentioned in plaintiff's petition and which are filed with plaintiff's petition subject to the orders of the court, and may refer to other notes not mentioned in plaintiff's petition; the alleged contract herein is indefinite and uncertain and void and uninforcible under the Statute of Frauds in this State which requires such contracts to be in writing. And having fully answered prays to go hence with his costs."

The evidence shows that W. J. Morris was the son of M. H. Morris, and was an employee of the Loan company; that W. J. Morris was in the office of the company during a portion of the day every day except Sunday during the time the matters in controversy herein transpired; that one J. W. Sims also was an employee of the company; that one Mrs. Genevieve Owens was employed as a stenographer by the firm on March 1st, 1920, and had been so employed since the spring of 1918.

In support of his case plaintiff introduced in evidence the contract sued upon; the five notes in question aggregating $5,000.00, dated February 25th, 1920, all payable on March 1st, 1927, bearing interest from March 1st, 1920 at the rate of 6% per annum, interest payable semi-annually, endorsed in blank "for value received" and "without recourse" by W. T. Morris and showing that the revenue stamps thereon were cancelled on February 25th, 1920; a deed of trust securing said notes and executed on February 25th, 1920, by the Hansens in favor of J. W. Sims as trustee for W. T. Morris. The deed of trust was acknowledged before Melvin H. Morris (who the evidence shows was the same person as M. H. Morris), as notary public. The certificate of the recorder shows the deed was recorded on March 3rd, 1920.

Plaintiff also introduced written instruments as follows:

                (Exhibit 7.)
                                "Sedalia, Mo.  Mar. 1, 1920
                

"Due C. S. Arnest. Deed of Trust and Abstract in connection with James J. Hansen $5,000.00 loan; same to be furnished as soon as completed. [Signed with rubber stamp] Morris Realty & Loan Co. [Signed] W. J. Morris."

                (Exhibit 8.)
                      "Sedalia, Mo.  Mar. 1, 1920. No. ___
                

"Third National Bank 80-55 Pay to Morris Realty & Loan Co. ____ or Bearer $178.00 One Hundred Seventy-Eight Dollars.

"[Signed] C. S. Arnest.

"(Stamped: `National Bank Paid Mar. 1, 1920. Sedalia, Mo.') And endorsed on the back, stamped with rubber stamp `Morris Realty & Loan Co.' and in pen `W.J.M.'"

                (Exhibit 9.)
                             "Sedalia, Mo. Mar. 1, 1920.
                

"One day after date I promise to pay to the order of W. T. and M. H. Morris—One Hundred Fifty Dollars.

"For value received negotiable and payable, without defalcation or discount and with interest from date at the rate of six per cent per annum and if the interest be not paid annually to become as principal and bear the same rate of interest. No. ___ Due ___ (Signature torn from note)

"Note bears two U. S. revenue stamps two cents each and cancellation mark as follows: `5/1/28 C. S. A.,' and on the back is the following: `Paid 8/14/20.'"

Plaintiff also introduced the deposition of Mrs. Genevieve Owens, who testified that she drew up all the loan papers in the office of the loan company; that the five promissory notes in question were made out by her; that she could not remember when she made them out; that it was a matter of practise when she drew up a deed of trust or notes to date them the day upon which they were made out; that all documents made out in the office bore the date of their execution. She identified the signature of Melvin H. Morris upon the acknowledgment of the deed of trust in question. She testified that Exhibit No. 7 was in the handwriting of W. J. Morris; that the signature thereto was the signature of the said Morris; that she recognized the rubber stamp portion of Exhibit No. 7 as being that made by the rubber stamp used in the office of the partnership at the time the exhibit was dated; that she had no personal recollection as to when the notes were made out; that March 1st and September 1st were the regular interest paying days in the office of the partnership; that Exhibit No. 8 was in the handwriting of W. J. Morris, except she did not recognize the signature thereon; that Exhibit 9 was in the handwriting of W. J. Morris. The evidence showed that the signature to Exhibit No. 9 had been torn off. She testified that the revenue stamps on the last-mentioned exhibit had been canceled with the initials "C S A" and that these initials were in her handwriting; that the cancellation or mark of payment was in the handwriting of W. T. Morris.

Mrs. Owens further testified that she recognized the type of the machine that was used in the office of the partnership; that she would positively say that the last paragraph commencing with the figures "3-1-20" of the contract sued upon was written in the office of the partnership and was written on the date it bore; that she recognized the typewriter type on Exhibits 1 to 6 inclusive (the notes and deed of trust); that these exhibits and the last paragraph of the contract sued upon were all made out on the same typewriter, being the one in the office of the partnership; that M. H. Morris transacted the business that plaintiff had in the office, but she did not recall that plaintiff was in the office in reference to "this $5,000.00 loan"; that plaintiff was a regular customer of the office; that the interest on the loans he purchased from the company would not be mailed to him but he would come into the office on every interest paying day; that plaintiff had other mortgages which had been sold to him by the partnership and had some which had been sold to him prior to the time she was employed by the partnership; that she knew plaintiff but was not acquainted with his handwriting.

Mrs. Owens further testified that it usually took from one to two weeks to bring an abstract down to date when making a loan; that it...