Bank of Flat River v. Walton

• Decision Date: 02 February 1915
• Docket Number: No. 13390.,13390.
• Citation: 173 S.W. 56
• Parties: BANK OF FLAT RIVER v. WALTON et al.
• Court: Missouri Court of Appeals

173 S.W. 56

BANK OF FLAT RIVER v. WALTON et al.

No. 13390.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Action by the Bank of Flat River against B. Walton and others. From a judgment for plaintiff, defendants appeal. Affirmed.

R. C. Tucker, of Flat River, and H. B. Ledbetter, of Farmington, for appellants. B. H. Marbury, of Farmington, for respondent.

ALLEN, J.

This is an action to recover a balance of $440 claimed to be due plaintiff upon the purchase price of a house and lot. Plaintiff alleges that the property was sold defendants for the agreed price of $450, and that defendants paid plaintiff $10 thereon, leaving the said balance of $440 due plaintiff. Defendants' answer sets up that the purchase price of the property was $350, that they made a cash payment of $10 and executed a note for $350, and paid plaintiff certain interest charges in advance and a recording fee for recording a deed of trust securing the note; and it is averred that the note was altered afterwards by plaintiff, without the knowledge and consent of defendants, whereby the amount thereof was changed from $340 to $440. The trial before the court and a jury resulted in a verdict and judgment for plaintiff for the sum of $387.85, and the defendants appealed.

The evidence shows that plaintiff bank had for sale certain small houses, which had been placed in the hands of a firm of real estate brokers, consisting of one R. G. Ramsey and his son, S. H. Ramsey, and that the house here in question was sold to defendants, husband and wife, by such brokers. There is a conflict in the testimony as to what was the purchase price of the house orally agreed to be paid by defendants. The evidence in behalf of plaintiff is to the effect that the agreed purchase price was $450, $10 to be paid in cash, and a note to be given for the remaining $440 secured by a deed of trust upon the property, but that one of the brokers, S. H. Ramsey, who consummated the transaction with defendants, by mistake had defendants sign a note for $340, instead of for $440. It is said that this mistake occurred by reason of the fact that the brokers had for sale another house belonging to plaintiff, near the one sold to defendants, which they were authorized to sell for $350, and that inadvertently the wrong note was used in consummating the sale. The deed of trust was never recorded, and it appears that it was lost. There was testimony, however, that a copy of the note, for $340, was pasted in the deed of trust, but that in the latter the purchase price was referred to as being $450.

The evidence is that, when S. H. Ramsey brought these papers to the bank and delivered them to the cashier, the latter called his attention to the mistake, and that thereupon he took the papers and started to change the note, and did change the figures thereof from $340 to $440; that the cashier at once interfered, preventing further alteration in the paper without the consent of the makers. It appears that the agent then undertook, without success, to get defendants' consent to have the amount of the note changed to conform to what was claimed to have been the real transaction. Defendant B. Walton testified that the property was sold for $350, and that he and his wife signed a note for $340, and that any change therein was wholly unauthorized; and he and other witnesses testified that he offered to make payments to plaintiff in accordance with what ...