Aufderheide v. Moeller
| Decision Date | 01 March 1926 |
| Parties | ALBERT AUFDERHEIDE, RESPONDENT, v. W. D. MOELLER, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Gasconade County.--Hon. R. A Breuer, Judge.
AFFIRMED.
Judgment affirmed.
James Booth and Virginia J. Booth for respondent.
W. C Irwin and Joseph T. Tate for appellant.
Trimble, P. J., absent.
This is an action to recover, and to have declared a vendor's lien, the remainder alleged to be due and unpaid on the purchase price of certain real property.
The facts of record are that on December 10, 1920, plaintiff sold to defendant a house and two lots in the town of Bland, Gasconade county, Missouri, for the agreed price of $ 2000. A written contract embracing the terms of sale was entered into between the two parties. As part consideration for the purchase price of the premises defendant paid plaintiff the sum of $ 202.33 in cash and assumed the payment of an existing deed of trust against the property for $ 770.17, a total of $ 972.50; in addition, and as further consideration, defendant indorsed for himself and caused to be indorsed for his brother, John D. Moeller, a certain certificate of deposit issued to the latter by the Bland Commercial Bank of the town of Bland in said county, a bank then engaged in general banking business, and caused said certificate to be delivered to plaintiff. This certificate of deposit, properly identified and placed in evidence, reads as follows:
At the time of the real estate transaction, there was due on said certificate the sum of $ 1000 principal and approximately $ 30 in accrued interest.
On December 10, 1920, plaintiff and his wife duly executed and delivered to defendant their warranty deed conveying to him the said premises. Thereafter, and on March 12, 1921, plaintiff's wife, at the direction of plaintiff, presented said certificate to said bank for payment, but payment thereon was not made. There is testimony of record tending to show that at the time said certificate was tendered for payment, and for a long time prior thereto, said bank was in an insolvent condition. There is also testimony tending to show that defendant was a director of said bank and had on deposit therein approximately $ 11,000. The bank was placed in the hands of the State Bank Commissioner on September 10, 1921, for liquidation, and was turned over by that department to one C. F. Hensley, a special deputy commissioner. Mr. Hensley testified that at the time the bank was closed, it had on deposit the sum of $ 44 in cash. This witness also testified that the bank was insolvent on December 12, 1920, and that it was in that condition until the time it was closed; and that the certificate of deposit in question had never been renewed, extended or paid.
The testimony in behalf of plaintiff tends to show that since the bank became insolvent plaintiff presented said certificate to the proper authorities for payment and has received thereon from the Commissioner of Finance three payments, to-wit:
Jan. 17, 1923
$ 96.92
June 1 1923
92.48
Jan. 28, 1924
46.24
Making a total amount paid
$ 235.64
and that no other payments thereon have been made.
The petition is formal, alleging certain matters not in dispute, and that defendant paid plaintiff $ 970 in cash and delivered to plaintiff the certificate of deposit in question and represented to plaintiff that said certificate was "just the same as money;" that thereafter plaintiff and his wife executed and delivered to defendant their warranty deed conveying to defendant the property therein described; that thereafter on March 12, 1921, plaintiff, by his agent, presented said certificate to said bank for payment, and payment thereof was refused; that at the time of such presentment and for a long time prior thereto, said bank was insolvent; that plaintiff has used the utmost diligence in his efforts to collect said certificate. The petition also alleges presentation to the Finance Commissioner in charge of the affairs of said bank, and payment by him of the following amounts: January 17, 1923, $ 96.92 and June 1, 1923, $ 94.48; that no other payments have been made, and that there is still due and unpaid on the purchase price of said premises, the sum of $ 1030. Judgment is asked for said amount and that the same be adjudged and decreed a vendor's lien on said premises; and that said premises be sold to satisfy said lien.
The answer admits the sale of the property as alleged; the payment of cash as specified, the transfer of the bank certificate and its indorsements as alleged. Further the answer avers that at the time of said endorsement and delivery, defendant had on deposit to his credit in said bank the sum of $ 1000 payable upon return of said certificate properly indorsed, with interest as therein specified. The answer also states that said certificate of deposit was indorsed and transferred by defendant and accepted by plaintiff as actual money; that it was at the request of plaintiff that the said certificate was indorsed and delivered to plaintiff; that from the time plaintiff received said certificate up to the time of instituting the action herein, plaintiff treated same as his own property, made affidavit to the Commissioner of Finance that it belonged to him, and accepted from said Commissioner two payments thereon.
The answer further states that defendants does not know, and has no information upon which to base a belief, whether said certificate was presented when due to the Bland Commercial Bank and payment was refused as alleged in the petition, nor whether the same was duly protested; alleges that due notice of such demand and refusal of payment was not given to defendant or his agent; and states that for valuable consideration, at about the time of the maturity of said certificate, and without the knowledge or consent of defendant, plaintiff agreed with said bank to extend the time of payment for a period of four months, whereby defendant became discharged from all liability thereon. The answer also contains a general denial.
Upon the pleadings thus made, the cause went to trial to the court sitting as a jury.
The court found that on the---day of December, 1920, plaintiff was the owner in fee of the real estate in question; that on said date the parties mutually contracted, plaintiff to sell and defendant to buy the property, for $ 2000; that as part consideration for the purchase price, defendant paid plaintiff the sum of $ 970 cash and caused to be indorsed by himself and his brother, John D. Moeller, a certain certificate of deposit issued to said John D. Moeller, by the Bland Commercial Bank, and caused said certificate of deposit to be delivered to plaintiff; that by said certificate it was certified that said John D. Moeller had deposited with said bank the sum of $ 1000, payable upon the return of said certificate properly indorsed, six months after date with interest at the rate of three per cent. per annum if left six months, and with interest at four per cent. if left twelve months; that at said time there was due and unpaid on said certificate the approximate sum of $ 1030, and that on said last-mentioned date, plaintiff and his wife duly executed and delivered to defendant their warranty deed, by which they conveyed said premises to defendant; that thereafter plaintiff, by his agent, presented said certificate to defendant bank on March 12, 1921. At the time of such presentation and for a long time prior thereto, said bank was insolvent and payment of said certificate was refused by it that said certificate was non-negotiable and that plaintiff has used the utmost diligence in his efforts to collect said certificate from the bank; that since said bank became insolvent plaintiff has presented the certificate to the proper authorities and has had allowed against said bank the amount due on the certificate, and that he has actually collected from the Finance Commissioner on said certificate the sum of $ 96.92 on January 17 and $ 92.48 on June 1, 1923; that no other payments have been made on said certificate and that defendant has never made to plaintiff any payment on the purchase...
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